Ray v. Anderson

• Decision Date: 23 June 1965
• Citation: 403 P.2d 372,240 Or. 619
• Parties: Wilma J. RAY, Respondent, v. Roiland ANDERSON and Lawrence A. Lee, Appellants.
• Court: Oregon Supreme Court

Page 372

403 P.2d 372

240 Or. 619

Wilma J. RAY, Respondent, v. Roiland ANDERSON and Lawrence A. Lee, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 8, 1965.

Decided June 23, 1965.

Thomas Cavanaugh, Portland, argued the cause for appellants. With him on the brief were Vergeer & Samuels, Portland.

James L. Hannam, Portland, argued the cause for respondent. With him on the beief were Jack R. Hannam and John P. Ronchetto, Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

HOLMAN, Justice.

Defendants have appealed from a judgment in favor of plaintiff for damages for personal injuries arising out of an accident between vehicles driven by plaintiff and the defendant Lee. Plaintiff's car was parked at the west curb facing south on Southeast 82nd Street in the City of Portland. As plaintiff drove away from the curb her vehicle was hit by the defendants' which was being operated in a southerly direction.

Defendants contend plaintiff was negligent as a matter of law because she did not first see that her movement in starting and turning from the curb could be made with safety nor did she give a signal as warning of her intent.

ORS 483.126(1) provides in part as follows:

'The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety. * * *'

Plaintiff testified that before driving from the curb she looked to the rear and saw defendants' vehicle approaching at a distance of from 200 to 300 feet. There was evidence from which it could be found that defendants' vehicle was being operated at a speed of 45 to 50 miles per hour. The indicated speed for the area was 35 miles per hour.

By requiring that a person, before starting, stopping, or turning from a direct line, must first see that the movement can be made with safety, the statute does not mean that the person takes this action at his peril. If, upon looking, it would appear to a reasonably prudent person that such action could be safely taken, he would not be guilty of negligence as the statute would not be violated. Whether this was the situation was, under the evidence, a question for the jury.

The statute further provides: '* * * [W]henever the operation of any other vehicle may be affected by such movement * * *' a signal is required. Plaintiff admits that she did not signal before driving from the surb onto the traveled portion of the street. The law does not require a motorist in every instance to give a signal of his intention; Schutt v. Hull, 193 Or. 18, 22, 236 P.2d 937 (1951). Whether, under the circumstances, defendants' vehicle was so close at the time plaintiff drove from the curb that it would appear to a reasonable person that the operation of defendants' vehicle would be affected by the movement of plaintiff's vehicle and a signal thus required was a question for the jury. Plaintiff, in the absence of notice to the contrary, or until by the exercise of due care she should have known to the contrary, had a right to presume that defendants' vehicle was being operated at a speed in conformance with the law: Walker v. Penner, 190 Or. 542, 556, 227 P.2d 316 (1951).

There being substantial evidence on which the jury could base their findings with regard to both questions, we do not disturb the jury's findings.

The court took from the jury's consideration defendants' claim that plaintiff was negligent because she failed to yield the right of way to defendants' vehicle. This is charged as error. Defendants claim they had a common law right of way.

This court is committed to the doctrine that a common law right of way exists in favor of an oncoming vehicle which is being met by one making a left turn between intersections across its lane of travel. Black v. Stith, 164 Or. 117, 100 P.2d 485 (1940); Blaylock v. Westlund, 197 Or. 536, 254 P.2d 203 (1953); Fisher v. Reilly, 207 Or. 7, 294 P.2d 615 (1956). We have been unable to find any other situation in which this court has ever held that a common law right of way existed. At no time has it held that right of way was an issue between vehicles traveling in the same direction. Where such an issue was attempted the court has refused to recognize it. In Brindle v. McCormick Lbr. & Mfg. Corp., 206 Or. 333, 293 P.2d 221 (1956), it was claimed that a deprivation of right of way occurred when a vehicle, which had overtaken and passed another, cut too sharply back into the right-hand lane of traffic forcing the overtaken vehicle off the road. The court held that a right-of-way instruction would there be...