Pitcher v. Leathers

• Decision Date: 12 December 1974
• Citation: 99 Or.Adv.Sh. 2970,270 Or. 666,529 P.2d 381
• Parties: Vi PITCHER, Respondent, v. Ronald Gregory LEATHERS and Jane Doe Leathers, Appellants.
• Court: Oregon Supreme Court

Page 381

529 P.2d 381

270 Or. 666

Vi PITCHER, Respondent, v. Ronald Gregory LEATHERS and Jane Doe Leathers, Appellants.

Supreme Court of Oregon.

Argued and Submitted Oct. 8, 1974.

Decided Dec. 12, 1974.

Richard Roseta, Eugene, argued the cause for appellants. On the briefs were Jaqua & Wheatley.

Robert J. McCrea, Eugene, argued the cause for respondent. On the brief were Mulder, Morrow & McCrea, P.C.

Before O'CONNELL, C.J., McALLISTER, HOLMAN, TONGUE, and HOWELL, JJ., and SLOPER and LEAVY, JJ. Pro Tem.

McALLISTER, Justice.

The plaintiff, Vi Pitcher, brought this action to recover damages for injuries sustained in an automobile collision allegedly caused by the negligence of the defendant Ronald Leathers.

In response to a motion by plaintiff for a directed verdict the court found as a matter of law that defendant was negligent in failing to keep a proper lookout and directed a verdict for plaintiff. The jury then awarded plaintiff general and special damages totaling $26,888.34. Defendant appeals.

Defendant contends that the court erred in finding as a matter of law that defendant failed to maintain a proper lookout and in directing a verdict for plaintiff. Defendant also complains of the court's refusal to grant his motion for mistrial because of plaintiff's improper injection of insurance into the case.

The collision occurred about noon on July 14, 1971, on highway 99 south about two miles south of Cottage Grove. The highway at that point is a straight paved two lane highway running in a northsouth direction and is intersected by a road that led on the east to a Weyerhaeuser mill and on the west to a parking lot across from the mill. There was a flashing yellow caution light at the intersection.

A large truck carrying wood chips to the mill was stopped in the southbound lane waiting for some northbound cars to pass before he made his left turn toward the mill. Plaintiff, who also intended to turn into the mill stopped her Fiat car immediately behind the truck.

Defendant was also driving south on highway 99S some distance behind plaintiff. A few seconds after plaintiff had stopped in back of the truck she heard something behind her, glanced in her rearview mirror, and saw defendant's car approaching from the rear. Defendant's car collided with the rear of her car.

Defendant testified that he had driven that road almost every day and that, although the road was straight and visibility good, he just did not see plaintiff's car until he was about 100 feet away. There was a rise in the road about 500 feet north of the intersection, which had its highest point approximately 30 feet above the normal road level. As the defendant came over the rise he noticed a large chip truck, but his attention was diverted by a group of people on the west side of the road which he thought 'weren't watching too much' and 'were just heading out'. He watched this group until he passed them and when he looked back he noticed for the first time plaintiff's car stopped behind the chip truck. He attempted to stop, but was unable to do so until his car had collided with the rear of plaintiff's automobile. He testified that if he had veered to the left he would have placed himself in the path of oncoming northbound traffic and if he had gone to the right he would have hit one of the people standing along the road.

This case is a replay of Lehr v. Gresham Berry Growers et al., 231 Or. 202, 372 P.2d 488 (1962), in which we mistakenly held that the trial court could decide as a matter of law that a driver had been guilty of negligence in one element of the trilogy of speed, lookout and control. Lehr was cited in later cases, but only to distinguish it from the case then under consideration.

In 1965, we overruled Lehr in Miller v. Harder, 240 Or. 418, 420--421, 402 P.2d 84, 85, in which we said:

'We have concluded that Lehr v. Gresham Berry Growers et al., supra, must be overruled. We will not reargue the merits of the case. The case has become however, a matter of much concern to this court, and we are sure, of greater concern to the trial practice. Since the decision in the case we have had many cases presented in which it has been claimed that the Lehr decision controls. As a result we have been obliged to attempt to analyze and weigh factual patterns that vary from the facts in the Lehr case in differing degrees. Jaeger v. Estep, 1963, 235 Or. 212, 384 P.2d 175; Wilson v. Clark, 1964, 238 Or. 126, 393 P.2d 659; Rough v. Lamb, 240 Or. 240, 401 P.2d 10, and other cases still pending. We are sure that this has become a much greater problem to the trial courts.

'Experience has taught that for the court to attempt to measure the varying facts in each of these cases against the pattern of facts in the Lehr case and to then decide as a matter of law how well each new case fits the pattern is unsound, if not unworkable. The deviation from the peculiar facts of Lehr change with each case, and we have concluded that the court is actually doing the jury work of matching facts against the reasonable man test.

'In addition, the complexities of traffic conditions range from two or three cars following in a single lane of travel to bumper to bumper traffic in miltilane streets and highways; from highway traffic uncontrolled by signals to urban controlled traffic. In these rear end collision cases whether or not a statutory rule such as following too closely, the giving of a signal, or speed has been violated in a given case should be left for the jury under proper instruction. This is equally true of the non-statutory duties. These considerations have caused us to reach the conclusion that we should follow the earlier cases cited in the dissenting opinion in the Lehr case and submit these cases to the jury.'

Since Miller v. Harder this court has again followed the rule that, except in rare cases, the issues of negligence, causation and contributory negligence in automobile collision cases are questions for the jury. Rogers v. Green, 241 Or. 435, 406 P.2d 553 (1965); Morrill v. Rountree, 242 Or. 320, 408 P.2d 932 (1965); Ewing v. Izer, 243 Or. 367, 412 P.2d 795 (1966); Turner v. Jentzen, 243 Or. 427, 414 P.2d 316 (1966); McPherson v. Cochran, 243 Or. 399, 414 P.2d 321 (1966). Those rare cases in which negligence has been found as a matter of law include Blanchette v. Arrow Towing Co., 242 Or. 590, 410 P.2d 1010 (1966) and Simmons v. York, 252 Or. 279, 449 P.2d 645 (1969).

Since we learned the hard way with Lehr, we do not intend to make the same mistake again. We will, as we did prior to Lehr, hold that issues of negligence and causation, including questions of speed, lookout and control, are for the jury. ¹

A recent statement of the rule regarding lookout is stated in Ewing v. Izer, supra, as follows:

'* * * Human vision cannot simultaneously comprehend all points of the compass. Accordingly, a motorist is not held as a matter of law to be under a duty to look in a specific direction at a specific time. Britton v. Jackson et al., 226 Or. 136, 359 P.2d 429 (1961); Phillips, Gdn. v. Creighton, Adm., 211 Or. 645, 316 P.2d 302 (1957). The standard of lookout required is that of the reasonable motorist under the same or similar circumstances. The determination of what a reasonable person would have done is properly left to the jury unless the court can say without hesitation that no reasonable person would have proceeded as the plaintiff did under all the evidence. Martin v. Harrison, supra (182 Or. 121, 180 P.2d 119, 186 P.2d 534). Whatever our individual notions of due care may be, we cannot say as a matter of law that other reasonable persons could not disagree. Accordingly, the question in this case...