Raz v. Mills

• Decision Date: 27 June 1962
• Citation: 231 Or. 220,372 P.2d 955
• Parties: Eileen RAZ, Respondent, v. Ruth MILLS, Appellant.
• Court: Oregon Supreme Court

Page 955

372 P.2d 955

231 Or. 220

Eileen RAZ, Respondent, v. Ruth MILLS, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 6, 1961.

Reargued Feb. 7, 1962.

Decided June 27, 1962.

Francis E. Marsh, McMinnville, for appellant. With him on the brief were Marsh, Marsh, Dashney & Cushing, McMinnville.

H. H. Phillips, Portland, for respondent. With him on the brief were James K. Buell and Phillips, Coughlin, Buell & Phillips, Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

GOODWIN, Justice.

This is an action for damages suffered in a collision between two automobiles. The jury rendered a verdict for the plaintiff. The defendant appeals from the ensuing judgment.

The plaintiff, Eileen Raz, was riding as a passenger in an automobile being driven by her husband in a northeasterly direction on Highway 99-W. The defendant, Ruth Mills, was driving a pickup truck on said highway in a southwesterly direction. The complaint alleges that the defendant negligently caused the pickup truck to collide with the Raz automobile, causing serious injuries to plaintiff. The specifications of negligence are as follows:

'1. In failing to keep her pickup truck under proper control.

'2. In failing to stop, turn or swerve to avoid colliding with the automobile in which plaintiff was a passenger.

'3. In failing to keep a proper lookout for the automobile in which plaintiff was a passenger.

'4. In operating her pickup truck at a speed that was greater than reasonable and prudent, having due regard to the traffic, the surface and width of the highway and other conditions then and there existing.

'5. In failing to drive her pickup truck on the right half of the highway when the left half of said highway was occupied by the automobile in which plaintiff was a passenger.

'6. In driving her pickup truck from the right half of the highway to the left half of said highway when such movement could not be made with safety.'

Defendant, by her answer, denies that she was negligent.

Assignment of Error No. I asserts that the trial court erred in denying a motion for a directed verdict. The defendant contends that the plaintiff failed to prove any one of the above-quoted allegations of negligence. Assignment No. II again challenges the sufficiency of the evidence by asserting error in the denial of defendant's motion for judgment notwithstanding the verdict.

Assignments III, IV and V are all based on the contention that there was no evidence of unreasonable speed. In the respective assignments it is contended that the issue of speed should have been withdrawn from the jury; that the court should have instructed the jury to disregard the allegations of the complaint concerning speed; and that the court should not have instructed the jury regarding the basic speed rule (ORS 483.102(1)).

Assignments VI and VII are based on the contention that there is no evidence to support the allegations of negligence in failing to drive on the right half of the highway. Assignment VI complains of the failure to withdraw those allegations of the complaint, and Assignment VII complains of the giving of an instruction concerning the duty to drive on the right half of the highway pursuant to ORS 483.302 and 483.304.

Assignment VIII relates to a ruling which struck out certain testimony.

The issues thus presented require us to determine, first, whether there was any evidence of negligence on the part of the defendant, as alleged in the complaint. If there was substantial evidence of negligence in one or more of the particulars specified, then Assignments of Error I and II are without merit and the case was one for the jury.

Only four witnesses testified concerning the collision. They were the plaintiff, Eileen Raz, her husband, Henry Raz, a disinterested eyewitness, Robert Rummer, and the defendant, Ruth Mills. Mr. Rummer was following the Raz car.

Rain had been falling prior to the accident. The night was dark. The pavement was wet, and visibility was poor. Both cars were traveling with lights on low beam. To the witnesses, the pavement 'looked shiny black.' It was slippery. At the point of impact the road was straight. The center line of the highway was marked with the usual painted line. The pavement was 20 feet wide. Both cars were in a zone where the indicated speed was 45 miles per hour. As they approached the scene of the collision, both cars were traveling 'about 30 miles an hour.'

The collision occurred opposite a restaurant known as 'Mary's Garden', which was on the south side of the highway. On the north side of the highway there were a filling station and a tavern. The lights were on at all three places. Mr. Raz said his lights at low beam would 'show up a hundred feet or so.'

All witnesses agreed that just before the impact a pedestrian suddenly crossed the road in front of the Raz automobile in its lane, and then, without pausing, in front of the approaching Mills automobile in its lane. Simultaneously, of course, the two automobiles were closing upon one another at the rate of their combined speeds. There was a lack of precise agreement on the details of the pedestrian's excursion between the two approaching automobiles, but all agreed that he was dressed in dark clothing and that he was visible only a short time. The persons in the Raz automobile said they saw the pedestrian on their right shoulder of the road and observed his passage to the other shoulder. Mr. Rummer said the pedestrian darted across 'like the dickens.' Mrs. Mills said she saw him only during the fleeting instant before she depressed the brake pedal. She testified that when she first saw the pedestrian he was three feet from the center line in her lane of traffic and just in front of her left headlight. Mr. Raz testified that the pedestrian had cleared the roadway and was on the far side when Mr. Raz noticed the defendant's truck coming toward him. The collision occurred in the lane of traffic occupied by the Raz automobile. Defendant said she applied the brakes and her truck skidded across the center line.

It will be recalled that the first two assignments of error challenge the sufficiency of the evidence upon the question of negligence. Inasmuch as the collision occurred in the plaintiff's lane of travel, we hold that the matter of negligence was a jury question. It is not necessary to decide in this case whether the manner in which the collision occurred constitutes the kind of circumstantial evidence which might, in the so-called resipsa-loquitur cases, relieve the plaintiff of the burden of proving a specific act of negligence. See cases discussed in Powell v. Moore, 228 Or. 255, 364 P.2d 1094. Here we have a specific act of negligence alleged (failure to remain on the right side of the road) and the allegation is supported by enough evidence so that the jury could find that this act of negligence was the proximate cause of the collision. On this point, moreover, the evidence was virtually undisputed. Failure to remain on the right side of the road would be a violation of the statutory duty imposed by ORS 483.302 and 483.306. If unexplained, the facts would establish a prima facie case for the plaintiff. Gum, Adm'r v. Wooge et al., 211 Or. 149, 159, 315 P.2d 119; Wilson v. Bittner, 129 Or. 122, 276 P. 268, 64 A.L.R. 132. Cf. Haltom v. Fellows, 157 Or. 514, 73 P.2d 680 (1937), where this court disapproved an instruction which told the jury the burden would be upon the defendant to justify his being on the wrong side of the road. While the burden of proof of negligence ultimately lies with the plaintiff in such cases, Gum, Adm'r v. Wooge et al., 211 Or., supra at 160, 315 P.2d 119, if the plaintiff is injured on the plaintiff's side of the road, that fact alone is prima facie evidence of negligence upon the part of the defendant and, if unexplained, would be sufficient to support a verdict for the plaintiff. While Haltom v. Fellows recognized the truth of the foregoing proposition, it confused the defendant's burden of going forward with evidence to meet a prima facie case with the ultimate burden of proof which, of course, remains upon the plaintiff. As we said in Gum, Adm'r v. Wooge et al., supra at 160, 315 P.2d at 124:

'After the defendant has produced rebutting testimony and rested his case it is, ordinarily, for the jury, in deciding whether the plaintiff has carried his burden of persuasion, to determine whether the prima facie case which the plaintiff established has been weakened or destroyed. It is, of course, manifest that the burden of persuasion on the issue of defendants' negligence rested throughout the case with the plaintiff. However, when the court was asked to direct a verdict for the defendants, it was required to determine whether the evidence produced by the defendants negated that which established the plaintiff's prima facie case so conclusively that no reasonable man could any longer be justified in engaging in the inferences which established the plaintiff's case.'

The foregoing explanation of the trial court's duty upon a motion for a directed verdict applies equally to the facts of the case at bar. If reasonable minds could differ concerning the defendant's explanation of the accident, then the case was one for the jury.

In the plaintiff's case in chief, there was evidence that a pedestrian had crossed in front of the defendant's truck, but sufficiently in advance of the truck so that a jury might have concluded that the defendant would not have been faced with an emergency if she had been keeping a proper lookout. The defendant, on the other hand, testified that she was keeping a lookout, but nevertheless discovered the pedestrian only when he was some twenty feet from her bumper. This evidence, of course, if believed by the jury, could support a finding that the defendant was faced with a sudden emergency. Thus, there was a jury question on the issue of the...