Rogers v. Green

• Decision Date: 13 October 1965
• Citation: Rogers v. Green, 406 P.2d 553, 241 Or. 435, 81 Or.Adv.Sh. 365 (Or. 1965)
• Parties: Dora ROGERS, Appellant, v. Coral Maynard GREEN and Safeway Stores, Incorporated, a corporation, Respondents.
• Court: Oregon Supreme Court

Page 553

406 P.2d 553

241 Or. 435

Dora ROGERS, Appellant, v.Coral Maynard GREEN and Safeway Stores, Incorporated, a corporation, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 10, 1965.

Decided Oct. 13, 1965.

Glenn R. Jack, Oregon City, argued the cause for appellant.With him on the brief were Jack, Goodwin & Anicker, Oregon City.

Edwin J. Peterson, Portland, argued the cause for respondents.With him on the brief were Arden E. Shenker and Tooze, Powers, Kerr, Tooze & Peterson, Portland.

Before McALLISTER, C. J., and PERRY, DENECKE, LUSK and SCHWAB, JJ.

SCHWAB, Justice pro tem.

Plaintiff appeals from judgment entered on verdict for defendants in a personal injury case.She assigns as error the trial court's failure to submit to the jury her allegation that the defendants had failed to keep a lookout.

This action arose out of a passenger cartruck collision in which plaintiff was a passenger in an automobile driven by her husband.Defendant Green was driving a truck as an employee of defendantSafeway Stores, Incorporated.The accident occurred on a sunny day on highway 212 in Clackamas county near the point where highway 224 merges into it.Viewing the area pertinent to this casewe find that highway 212 runs in a substantially straight line and in an easterly direction for over 700 feet to the point where it is entered from the southeast at approximately a 45~ angle by highway 224.From this point highway 212 curves very slightly to the south and starts up grade.Duly posted stop signs require traffic on highway 224 to stop before entering highway 212.As defendant Green was driving the Safeway truck east on highway 212 at a point at least 275 feet from its intersection with highway 224, the automobile in which plaintiff was a passenger was at the front of a string of vehicles stopped on highway 224 at the stop sign preparatory to entering the west bound lane of highway 212.As the truck drew closer, defendant Green saw plaintiff's car entering the intersection whereupon he honked his horn, swerved and braked in a futile effort to avoid a collision.Neither the husband, nor plaintiff, nor plaintiff's daughter who was also riding in the automobile were aware of the presence of the truck until an instant before impact.

In addition to other allegations of negligence, plaintiff's complaint charged the defendants with failure to maintain a lookout, failure to keep control, and excessive speed.The trial court submitted 'control,' and 'speed,' but withdrew 'lookout.'Defendants concede that there was evidence requiring the submission of 'speed' and 'control' to the jury, but contend that there was no evidence of inadequate 'lookout.'We cannot agree.

Searching the record, as we must, for evidence to support plaintiff's position, we find testimony that Green was going 55 miles an hour at a point less than 300 feet from an intersection which he knew to be dangerous.At this point he observed a string of cars stopped at the stop sign, and nothing thereafter occurred to obstruct his view of them.The evidence indicates that there were at least four vehicles in this line, one of which was pulling a 15-foot trailer.The plaintiff's automobile was at the front of this line.Defendant Green on direct testimony says that when he was halfway across the bridge west of the intersection he first realized that plaintiff's car was coming out in front of him.This point is over 200 feet west of the intersection.From his own testimony on cross-examination the jury could have inferred that from the time he first observed the vehicles at the intersection his watch over them was intermittent.

'Q You were about at the westerly end of that bridge when you looked and saw the Rogers car stop here at this rubberplated stop sign (indicating)?I think that's your testimony.If it isn't, why you just tell me.

'A I am not positive just where I was at.I say approximately.

'Q You were about at the end of this, the west end of this bridge?

'A Yes.

'Q In other words, from that point you had the bridge to cross and then the distance to go from the end of the bridge to the stop sign, and you saw that Mr. Rogers was stopped?

'A I don't know whether it was Mr. Rogers' car.I had seen a string of cars.

'Q Yes, but is it the car that you later collided with that you saw stopped?

'A I presume it was.I wouldn't say definitely.'

The nature and extent of lookout required varies with circumstances.

'* * * A motorist is required to keep a reasonably continuous lookout but is not required to continuously look for danger from a particular area unless under similar circumstances such a lookout would be maintained by a reasonably prudent person.'Phillips, Gdn. v. Creighton, Adm., 211 Or. 645, 652, 316 P.2d 302, 306.

Here the jury could have found that the defendant, approaching within 275 feet of a known dangerous intersection at a speed of 55 miles per hour, should have maintained a continuous 'look' at a vehicle he saw poised to enter his path.This case comes under the rule laid down in Nicholas v. Fennell, 184 Or. 541, 199 P.2d 905, quoted at length in McReynolds v. Howland, 218 Or. 566, 346 P.2d 127, and reiterated in a recent case involving a somewhat similar fact situation, Troupe v. Ledward, 238 Or. 531, 536, 395 P.2d 279, 281, in which this court, speaking through Rossman, J., stated:

'Speed, control and the duty to maintain an adequate lookout are interrelated.As speed increases, the duty to be alert and have one's automobile under adequate control increases.Accordingly, when the plaintiff...