Murphy v. Read

• Decision Date: 02 November 1937
• Citation: 72 P.2d 935,157 Or. 487
• Parties: MURPHY v. READ.
• Court: Oregon Supreme Court

72 P.2d 935

157 Or. 487

MURPHY v. READ.

Supreme Court of Oregon

November 2, 1937

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Clara C. Murphy against John H. Read. Judgment for plaintiff, and defendant appeals.

Affirmed.

Action to recover damages for personal injuries sustained by plaintiff, Clara C. Murphy, when she was walking in the pedestrians' lane of traffic across an intersection and was struck by defendant's automobile. From a judgment in favor of plaintiff, defendant appeals.

Donald K. Grant, of Portland (Maguire, Shields & Morrison, of Portland, on the brief), for appellant.

Barnett H. Goldstein, of Portland (Arthur B. Baines, Jr., of Portland, on the brief), for respondent.

KELLY, Justice.

On January 15, 1936, at about 6:45 a. m. the plaintiff, a pedestrian, was walking in a westerly direction upon and along the northerly crosswalk of Northeast Going street where the same intersects Northeast Union avenue in the city of Portland, Multnomah county, Or., said crosswalk being the pedestrians' lane of traffic thereat. Defendant was driving his automobile in a northerly direction. There was another car in front of defendant's approaching said pedestrians' lane. As said car ahead came in close proximity to plaintiff, plaintiff emerged from in front of said car ahead and defendant failed to yield to her the right of way but collided with her to her personal damage and injury.

The question here involved is whether, on the ground of inevitable or unavoidable accident, defendant may excuse himself from failing to anticipate that the plaintiff, a pedestrian in the pedestrians' lane of traffic, might suddenly emerge from in front of the other car. We think not.

The defendant, in the exercise of ordinary care should have driven his automobile at such a speed that he could have stopped in time to avoid striking plaintiff while she was in the pedestrians' lane of traffic and free from negligence on her part. The fact that the car ahead avoided striking plaintiff by swerving to the right did not relieve defendant from the necessity of controlling the speed of his car in anticipation of the presence of pedestrians where they had a right to be.

In all collisions, a time comes before the actual impact when no human power can prevent it; but the one, who by his negligence has brought about that situation, cannot avoid liability on the ground that the impact was unavoidable or inevitable. The question is, Did the defendant's negligence either with or without the concurrence of negligence of any other tort-feasor produce or cause the situation which rendered it impossible to avoid injuring plaintiff.

In the case at bar, plaintiff, herself, is absolved from any charge of negligence. Clearly, if in approaching the place of the accident, defendant had operated his car at a speed which would have enabled him to stop on seeing a pedestrian exercising due care in the pedestrians' lane of traffic in front of him, no injury would have ensued.

In Daniels v. Riverview Dairy, 132 Or. 549, 287 P. 77 79, the instruction upon an unavoidable accident as given was held to be "indeed favorable to the defendant."

In Archer v. Gage, 126 Or. 532, 270 P. 521, the plaintiff's decedent darted out in front of an autobus which had left the main highway for the purpose of turning around. Plaintiff's decedent did not have the right of way.

In Meaney v. Portland Electric Power Co., 131 Or. 140 282 P. 113, defendant was operating a logging train. There was testimony to the effect that the rear brakeman saw an automobile, other than the one in suit, approaching the train at such a speed that a collision was inevitable, and, in order to minimize the damage to that automobile, the brakeman pulled the conductor's emergency valve and stopped the train, whereupon the car in which plaintiff was an occupant ran into said train. The train had the right of way on its tracks and had a right to stop in the emergency above stated.

In Hanks v. Norby, 152 Or. 610, 54 P.2d 836, the testimony indicated that the accident might have occurred solely because of the negligence of plaintiff's father.

In the case at bar, either defendant was negligent in such a manner as to cause the collision or he was not. If it could be said that the driver of the car ahead of defendant was negligent in driving at such a speed that he was compelled to swerve quickly to his right to avoid striking plaintiff, it is obvious that defendant was also negligent in maintaining the same speed. It could not be argued that the driver of the car ahead should have kept his course and run over plaintiff nor that defendant was any less negligent because the driver of the other car did not do that.

Moreover analyzing the definition of an unavoidable accident, which this court has approved, it means simply that the accident occurred without any negligence on the part of either of the parties to the action. In a case where no negligence is charged on the part of plaintiff, leaving as the only issue that of alleged negligence on defendant's part, an instruction on unavoidable accident is merely a repetition of the charge that, if no negligence has been proven on defendant's part proximately causing the accident, the verdict of the jury should be for the defendant. This is what the learned trial judge charged the jury in the case at bar. His failure to repeat it in the form of the requested instruction upon unavoidable accident, in the light of the record of this case, did not constitute reversible error.

In Kitchel v. Gallagher, 126 Or. 373, 383, 270 P. 488 where one of the defenses was that of unavoidable accident, this court held that an instruction on the law of unavoidable accident was not necessary for the reason that the general instructions of the court, wherein he charged the jury that plaintiff must prove defendant negligent before plaintiff could recover sufficiently, covered...