Nettleton v. James et al

• Decision Date: 08 January 1958
• Citation: Nettleton v. James et al, 212 Or. 375, 319 P.2d 879 (Or. 1958)
• Parties: NETTLETON <I>v.</I> JAMES ET AL
• Court: Oregon Supreme Court

212 Or. 375

319 P.2d 879

NETTLETON

v. JAMES ET AL

Supreme Court of Oregon.

Argued December 5, 1957.

Reversed and remanded January 8, 1958.

Driver of automobile brought action against owner and driver of truck and his employers for injuries sustained by driver of automobile when automobile was struck from the rear by truck. The Circuit Court, Coos County, Dal M. King, J., entered judgment adverse to the driver of the automobile, and he appealed. The Supreme Court, Lusk, J., held that where brakes on truck failed because of open valve, it was immaterial whether valve was open because of negligence of defendant driver and owner or because of other cause, and that, in either case, statute relating to brakes on motor vehicles was violated, and that driver of automobile was entitled to an instruction to that effect, and that refusal of Circuit Court to give such an instruction at the request of the driver of the automobile was error.

Judgment reversed and cause remanded for further proceedings.

Negligence — Unavoidable accident

1. An "unavoidable accident" is an accident which occurs without negligence of any one.

See publication Words and Phrases, for other judicial constructions and definitions of "Unavoidable Accident".

Negligence — Violation of statute — Duty

2. Violation of a statute commanding a certain duty is negligence in and of itself.

Automobiles — Violation — Statute — Specific regulations — Negligence

3. Violation by driver or owner of automobile of statute containing specific regulations as to brakes is negligence per se. ORS 483.444.

Automobiles — Brakes — Truck — Failed — Statute — Instruction

4. Where brakes on truck, which ran into rear of plaintiff's automobile, failed because of open valve, it was immaterial whether valve was open because of negligence of defendant owner and driver or because of some other cause, and, in either case, statute relating to brakes on motor vehicles was violated, and plaintiff was entitled to instruction to that effect, and court's refusal to give such instruction at request of plaintiff was error. ORS 483.444. Automobiles — Hand brake — Adequate — Jury

5. In action for injuries sustained by driver of automobile when automobile was struck from rear by truck, question whether hand brake on truck was adequate was for jury. ORS 483.444.

  See defective brakes as negligence
                  5A Am Jur, Automobiles and Highway Traffic §§ 248, 249
                  14 ALR 1339.
                  60 CJS, Motor Vehicles § 261.
                

Department 2.

Appeal from Circuit Court, Coos County.

DAL M. KING, Judge.

C.X. Bollenback, argued the cause for appellant.

W.A. Johansen argued the cause for respondents. On the brief were McKeown, Newhouse & Johansen, Coos Bay.

Before LUSK, Presiding Justice, and WARNER and KESTER, Justices.

REVERSED AND REMANDED.

LUSK, J.

This is an appeal by the plaintiff from an adverse judgment in an action to recover damages for personal injuries sustained by plaintiff when the automobile he was operating was struck from the rear by a logging truck driven by the defendant, A.L. James. The truck belonged to James and was leased by him to the other two defendants. James was their employee, and admittedly was engaged in the course of his employment at the time of the accident.

The assignments of error raise questions of the proper application of the Oregon statutes relating to the sufficiency of brakes on automobiles.

The facts are virtually free from dispute. On July 27, 1954, the plaintiff, who was driving from Coos Bay to Coquille, brought his car to a stop in obedience to a signal of a flag woman who was a member of a highway construction crew. Defendant James was following the plaintiff driving a log truck. James saw the plaintiff's car coming to a stop and saw his stop signal, and endeavored to stop also, but his brakes failed and as a result the truck crashed into the rear of plaintiff's car causing the injuries complained of. The accident occurred early in the afternoon of a clear day. The pavement was dry and the highway free of obstacles.

The evidence relating to the condition of the truck's brakes was given by the defendant James as an adverse witness for the plaintiff. He had started out that morning from Gold Beach with a load of lumber for delivery at Central Dock north of Coos Bay. The lumber was carried in a trailer hauled by the truck. After the lumber had been unloaded at the dock he disconnected the trailer, which was then hoisted onto the bed of the truck. The foot brakes on the truck were air operated. When the trailer was coupled with the truck two hoses, one on either side, connected the truck and trailer through which compressed air, stored in two tanks on the truck, could be released to actuate the brakes on the trailer. Underneath the bed of the truck near the rear were two valves, one on either side. The one on the right is the "hot line," and its purpose is "to shoot the air back to the trailer." The one on the left is known as the exhaust valve, and both valves must be kept open when the trailer is being hauled by the truck in order for the trailer brakes to operate. When the trailer is disconnected from the truck it is necessary, before uncoupling the hoses, to close both valves, which is done by turning a handle 90 degrees in a horizontal plane. If the valves are not closed the air escapes and all braking power is lost. It takes considerable pressure to open and shut the valves.

James testified that before disconnecting the trailer he closed both valves. The trailer then having been loaded onto the truck, he set out on his return journey to Gold Beach. He used the foot brakes coming down a long grade when he was about two miles north of the scene of the accident. The plaintiff's car passed him about a mile or a mile and a half south of Coos Bay, and he was in sight of it most of the time until the accident occurred. He was following the plaintiff's car at a distance of about 500 or 600 feet and traveling at a speed of 25 miles an hour when he saw the plaintiff's stop lights come on and saw him signal for a stop with his arm. He immediately applied the foot pedal, slowly at first, but the truck did not slow down. He put the pedal clear to the floor, and found that he had no brakes. He then grabbed the emergency brake, and "the air buzzer started buzzing." The air buzzer cuts in for a warning when air pressure drops below 60. He swerved his truck to the left, but saw a log truck approaching, and, to avoid colliding with it, turned back to the right, intending to go off the embankment on the right-hand side, but he was then too close to the plaintiff's car, which had come to a complete stop, to avoid hitting it. James testified that he was within 100 feet of the plaintiff's car when he grabbed the emergency brake and the air buzzer sounded, and he then realized that he had no brakes. After the accident he discovered that the exhaust valve was open.

Regarding the emergency brake, James testified that "it has a disk on the main drive line," and "you pull that on and it squeezes the shoe against this disk" that it does not actuate the shoes against the brake drums but works only on the drive line. When he used the hand brake it seemed to slow the truck down a little, but it did not lock the wheels nor stop the truck.

James further testified that, if the valves are not closed preparatory to uncoupling the hoses when the trailer is to be disconnected, one would hear a blast of air escaping, and on this occasion nothing of the kind occurred, and that "when they lifted the trailer up and I backed under the trailer I had to set my brakes, and if that valve had been open at that time I would have lost air then also" and "would have heard the air escape."

A police officer, who examined the truck immediately after the accident and discovered the open valve, testified that he had discussed it with James and that "the exact responsibility of placing who had left that valve open, Mr. James was unable to tell me as to that."

There are two assignments of error which call for our consideration. They are based on the court's failure to give the following instructions requested by the plaintiff:

"I instruct you that the laws of the State of Oregon concerning the brakes on a motor vehicle which I have just mentioned are absolute, that is, the law does not make any exceptions or allow any excuses."

"The defendants in this case have admitted that the truck involved in this collision did not have effective brakes at the time of the collision; under these circumstances the defendants were guilty of negligence by reason of that fact alone; under these circumstances the sole questions for your consideration are whether such negligence was the proximate cause of the injuries, if any, that the plaintiff sustained, and if you find he did so sustain injuries, then you shall turn to the consideration of the question of damages."

The court instructed the jury that "if you find from the evidence that the defendants violated any of the provisions of the statute to which I will call your attention, such violation, if any, would be negligence," and gave to the jury the substance of ORS 483.444, which contains the requirements for brakes on motor vehicles. The court also instructed on unavoidable accident, advising the jury that the question of unavoidable accident raises no new issue but means merely an accident that happens without negligence on the part of any person, and that if the defendant James was not guilty of negligence in one or more of the particulars charged, "then, of course, the defendants would be entitled to your verdict whether or not it was an unavoidable accident." The court also submitted to the jury the question of whether, if the defendant James was found to be negligent, such negligence was the proximate cause of plaintiff's injuries.

There was no question of contributory negligence in the case.

ORS 483.444 provides in part:

"(1) Every motor vehicle...