Rauw v. Huling

• Decision Date: 17 June 1953
• Parties: RAUW v. HULING et al.
• Court: Oregon Supreme Court

Page 99

259 P.2d 99

199 Or. 48

RAUW v. HULING et al.

Supreme Court of Oregon.

Argued and Submitted May 20, 1953.

Decided June 17, 1953.

William C. McCarthy and Loyal H. McCarthy, Portland, McCarthy & McCarthy, of Portland, on the briefs, for appellant.

Hugh L. Biggs, of Portland, Cleveland C. Cory and Hart, Spencer, McCulloch, Rockwood & Davies, of Portland, on the brief, for respondents.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an action for damages for injuries to person and to property, claimed to have been suffered as the result of the negligent operation of a motor truck, brought by Mathew H. Rauw, as plaintiff, against Harley Thomas Huling and Vernon Sparks, individually and as co-partners, as defendants. The trial resulted in a verdict and judgment in favor of defendants. Plaintiff appeals.

Prior to and at the time of the accident involved in this litigation, plaintiff was a salesman and in connection with his work owned and operated a Dodge coupe automobile. Defendants were co-partners engaged in the cement contracting business and in connection with their business owned and operated a Dodge motor truck with a cement mixer installed thereon.

The accident occurred at about 8:30 a.m. on June 1, 1949, at the intersection of S. E. Stark street and S. E. 117th avenue, just east of the city limits of the city of Portland in Multnomah county, Oregon. S. E. Stark street runs in a general easterly and westerly direction and S. E. 117th avenue in a general northerly and southerly direction. Both east and west of its intersection with S. E. 117th avenue, S. E. Stark street is paved with black-top, 21 feet in width, with a concrete strip or shoulder, 4 feet 10 inches in width, on each side thereof. A yellow stripe marks the center line of S. E. Stark street. At the time of the accident, the pavement was dry.

Immediately prior to and at the time of the accident, plaintiff was operating his automobile in an easterly direction along S. E. Stark street on his way to Gresham to make certain calls upon customers of his employer. At the same time, defendants were operating their motor truck in a westerly direction along S. E. Stark street, intending to turn left at S. E. 117th avenue. Defendant Huling was driving the motor truck and was accompanied by his partner Sparks, they then being engaged in the business of the partnership.

While defendants were in the process of making their left turn at S. E. 117th avenue, the motor truck was struck just behind its right front wheel by the front end of plaintiff's automobile. As the direct result of the collision, plaintiff suffered certain personal injuries, and his automobile was badly damaged.

Plaintiff, in his complaint, alleged that the collision was caused by reason of the following acts of negligence on the part of defendants:

'(a) Making a sudden left turn without a proper signal and without any signal;

'(b) Failing to yield the right-of-way to oncoming traffic while making a left turn;

'(c) Making a left hand turn without sufficient clearance therefor;

'(d) Failing to keep a proper lookout for other vehicles;

'(e) Failing to keep their truck under proper control.'

Defendants, in their answer, denied the acts of negligence alleged against them and affirmatively charged that the collision was caused by reason of plaintiff's contributory negligence in the following particulars:

'1. He failed to keep a proper lookout for vehicular traffic upon and along Southeast Stark Street, and particularly for the automobile which the defendants were then and there operating.

'2. He operated his automobile at an excessive rate of speed under the conditions and circumstances then and there attending.

'3. He failed to keep his automobile under proper or any control.

'4. He failed to stop, swerve or do other act to avoid colliding with the automobile defendants were then and there operating.

'5. He failed to yield the right of way to the automobile which defendants were then and there operating.'

By his reply, plaintiff denied all the acts of negligence charged against him.

There was a sharp dispute in the testimony as to whether defendants gave a proper signal before making the left turn, also as to the position of the two vehicles upon the highway when the left turn was commenced and as to the speed of plaintiff's automobile. It is unnecessary for us to discuss this testimony, as the disputes between the parties have been resolved by the verdict of the jury.

Upon this appeal, plaintiff sets forth seven assignments of error. Two of those assignments relate to objections made to the introduction of certain testimony. Four are directed to instructions given or refused. One, No. VII, is general in character and challenges the sufficiency of the evidence to justify a verdict for defendants.

Under Assignment of Error No. I, plaintiff charges that the trial court 'erred in overruling plaintiff's objection to the admission of testimony * * * concerning the type or class of district along the highway east of S. E. 117th Avenue, which the plaintiff had not traveled over or reached, and in preventing plaintiff's attorney from setting forth in full the objection to said testimony.'

The testimony objected to described conditions on both sides of S. E. Stark street immediately east of S. E. 117th avenue (i. e., immediately east of the intersection involved in this case) as to merchandise stores and other places of business. Immediately west of the intersection it was open country for at least two blocks. In passing upon plaintiff's objection to this line of testimony, the Court said:

'Well, I assume he is trying to show conditions in order to indicate what type of district this was. Is that the purpose?

'Mr. Biggs: Well, certainly, your Honor.

'(Argument)

'The Court: Just a moment. You made your objection and I will permit the examination to proceed for the purpose of showing the condition of the location in order to show what type or character of district existed as that place because that would have a bearing on the indicated speed.'

We do not understand what plaintiff has in mind in the statement that the court erred 'in preventing plaintiff's attorneys from setting forth in full the objection to said testimony.' The objection made was sufficient for all of plaintiff's purposes on this appeal. Moreover, the record does not disclose any such action on the part of the trial court. There is no merit whatever in that portion of the assignment of error.

The court did not err in overruling plaintiff's objection. The testimony was material and admissible, not only as it might relate to designated speed, as stated by the court, but also as describing the existing conditions at and near the scene of the accident which were relevant to the application of the basic rule as to speed.

Under the statutes of this state (with certain exceptions not material in this case) there are no 'speed limits', as such, traveling in excess of which will, in and of itself, constitute a violation of law. Speed of motor vehicles is regulated entirely by the provisions of the basic rule. 'Designated speeds' for certain districts are not 'speed limits'. The statute that provides for certain 'designated speeds' merely sets forth a rule of evidence. Whenever the question of speed of a motor vehicle in involved, the ultimate fact to be determined is whether the basic rule has been violated, not whether the vehicle traveled in excess of the designated speed. Section 115-320(a), O.C.L.A., as amended by ch. 458, Oregon Laws 1941, in part provides as follows:

'No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other conditions then existing.

'Nor shall any person drive at a speed which is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care * * *.' (Italics ours.)

That is the 'basic rule' as to speed. Under the facts of this case, we are concerned only with the first paragraph thereof. Subdivision (b) of § 115-320, O.C.L.A., as amended by ch. 458, Oregon Laws 1941, provides for 'designated speeds' in certain districts as defined in the statute: 20 miles per hour in passing school buildings, etc., in approaching a railroad grade crossing, etc., 'In any business district', in approaching a highway intersection where the driver's view is obstructed; 25 miles per hour in any residence district and in public parks; and 55 miles per hour in other locations. The statute also provides:

'Any person who drives a vehicle upon a highway at a speed in excess of that designated by this act * * * and who, while so driving, violates the basic rule * * * shall, upon conviction, be punished * * * provided, that any speed in excess of said designated speeds, shall be prima facie evidence of a violation of subsection (a) of this section.' (Italics ours.)

The evidence discloses that the district immediately adjacent to and east of the intersection of S. E. Stark street and S. E. 117th avenue is a 'business district' within the meaning of the statute; the territory immediately west of the intersection is not. Plaintiff would not have been traveling in a business district until he had crossed the intersection; and, therefore, in approaching the intersection, he was in no sense governed by the 'designated speed' for a business district. However, the speed of his vehicle was governed by the basic rule which takes into consideration 'the traffic, surface and width of the highway and the hazard at intersections and any other conditions...