Noble v. Sears

• Decision Date: 12 July 1927
• Citation: Noble v. Sears, 122 Or. 162, 257 P. 809 (Or. 1927)
• Parties: NOBLE v. SEARS.
• Court: Oregon Supreme Court

257 P. 809

122 Or. 162

NOBLE v. SEARS.

Supreme Court of Oregon

July 12, 1927

In Banc.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action for personal injuries by Ora Noble against James K. Sears. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff recovered a judgment against defendant for personal injuries received in an automobile accident May 2, 1926. Plaintiff was riding with her husband along the West Side Pacific highway, traveling northerly near McCoy. Defendant was traveling on a county road westward towards McCoy at the same time. Another automobile was approaching the intersection of said highway and county road, traveling south at the same time. In order to avoid a collision with the defendant's automobile, plaintiff's husband swerved his car suddenly towards the left, and in doing so had to also avoid collision with the automobile traveling southward approaching the same intersection. As a result the automobile in which plaintiff was riding came in contact with a telephone pole, injuring the plaintiff. Plaintiff charges the defendant with negligence in this that he drove into said intersection at a speed greatly in excess of 5 miles per hour and just as he entered the intersection spurted up the speed of his car. Defendant denies negligence on his part and alleges contributory negligence on the part of plaintiff and her husband. A verdict was returned by the jury in favor of plaintiff against defendant for the sum of $3,000. The appeal is from the judgment entered on that verdict.

Jas. G Heltzel, of Salem, and Oscar Hayter and R. S. Kreason, both of Dallas, for appellant.

Vinton & Tooze and Eugene E. Marsh, all of McMinnville, for respondent.

COSHOW J. (after stating the facts as above).

Defendant assigns six grounds of error in his appeal. The first three are treated together in defendant's brief and will be disposed of in the same order in this opinion. The three assignments are that the court erred in refusing to direct a verdict for defendant, in submitting the case to the jury and in entering a judgment for plaintiff on the verdict. The bill of exceptions clearly discloses evidence tending to prove negligence on the part of defendant. Not only the plaintiff and her husband but a disinterested witness, who saw the defendant's car approach and enter the intersection, testified that defendant entered the intersection at a speed in excess of 5 miles per hour, and as he entered materially increased the speed of his car. The West Side Pacific highway is a primary highway. Or. L. 1925 chapter 104, § 2.

It has been so often determined by this court that the violation of a law is negligence that no elaboration is required to show that the testimony referred to tends to establish negligence on the part of defendant. Ramp v. Osborne, 115 Or. 672, 961, 239 [122 Or. 166] P. 112. This court cannot weigh the evidence but must accept the verdict of the jury, if there is any material evidence to support it. It thus appears clearly that it was not error for the learned judge to deny the motion for a directed verdict, or to submit the case to the jury, or to render judgment on the verdict, unless the evidence discloses, as a matter of law, that the plaintiff was guilty of negligence which contributed to her own injury. The evidence does not disclose any such state of facts. It is not seriously contended by the defendant that plaintiff was guilty of contributory negligence. The facts, as related by both parties, disclose that the accident was the result of the three cars approaching the intersection almost simultaneously, and there is no evidence to show that the plaintiff had control of the car in which she was riding or that she could have done anything to have avoided the accident. Defendant does not contend that plaintiff is responsible for her husband's lack of judgment or for his negligence, unless she contributed to such negligence. The evidence does not justify this court in saying that plaintiff was guilty of negligence as a matter of law. Whether or not she was guilty of negligence was submitted to the jury under proper instructions, and the jury found in her favor. We are bound by that verdict.

The fourth assignment of error is based on the instruction of the court in the following language:

"This right of precedence at a crossing has no proper application except where the travelers or vehicles on the intersecting highways approach the crossing so nearly at the same time and at such rate of speed that if both proceed, each without regard for the other, a collision or interference between them is reasonably to be apprehended. In such a case, it is the right of the one having the precedence to continue his course, and it is the duty of the other to yield him the right of way. But if a traveler not having such right of precedence comes to the crossing and finds no one approaching it upon the other highway within such distance as reasonably to indicate danger of interference or collision, he is under no obligation to stop or wait, but may proceed to use such crossing as a matter of right."

This instruction was approved in Johnson v. Underwood, 102 Or. 680, 698, 203 P. 879. It was criticized in Ramp v. Osborne, 115 Or. 672, 702, 239 P. 112. It was criticized in the latter case, however,...