Ross v. Willamette Valley Transfer Co.

• Decision Date: 14 September 1926
• Citation: 248 P. 1088,119 Or. 395
• Parties: ROSS v. WILLAMETTE VALLEY TRANSFER CO.
• Court: Oregon Supreme Court

248 P. 1088

119 Or. 395

ROSS v. WILLAMETTE VALLEY TRANSFER CO.

Supreme Court of Oregon

September 14, 1926

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by Marjory Ross, by E. E. Ross, her guardian ad litem against the Willamette Valley Transfer Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Robert F. Maguire, of Portland (Potter, Foster &amp Immel, of Eugene, and Winter & Maguire, of Portland, on the brief), for appellant.

Charles A. Hardy, of Eugene (C. A. Hardy and S. M. Calkins, both of Eugene, on the brief), for respondent.

BURNETT J.

The plaintiff, a child 10 years of age, appearing by her father as guardian ad litem, sues the defendant corporation for damages suffered by her in a collision of her father's automobile with the rear end of a trailer attached to one of the trucks of the defendant. The substance of the complaint is that defendant was operating a truck on the highway a short distance north of Eugene on the night of October 14 1923. The night was dark and rainy, so that it was difficult to see, and the rain blurred the windshields of both the truck and the automobile. As grounds of negligence attributed to the defendant, it is said, in substance, that defendant operated the truck without a red light on the rear thereof; that it negligently stopped and parked the truck on the paved highway, so that it was standing still on the east side of the pavement, with the left wheels on the pavement, so that the body protruded over the pavement for a distance of more than 5 feet. It is said that the plaintiff was traveling with her father in his Overland automobile and, on account of the darkness and the glare of the other automobile lights coming toward them, and the dimming of his own lights, together with the blurring of the windshield by the rain, he was unable to see the truck of the defendant, and so collided with it, resulting in the injury of the plaintiff.

The answer denies the complaint entirely, except the existence of a corporation, the age of the plaintiff, and the appointment of her guardian ad litem. The answer affirmatively attributes to the negligence of the father exclusively the injury which happened to the plaintiff in the collision, in that he drove his automobile at a time when he could not see where he was going. All this was traversed by the reply. The essence of the contention is that the plaintiff says the accident happened solely on account of the negligence of the defendant. On the other hand, the defendant, denying the affirmance of its own negligence, says that the accident happened solely on the negligence of the plaintiff's father. That is the essence of the issue.

It is admitted in the evidence that there was no red light on the rear of the trailer, but that on the left side thereof, about two feet from the back end, was a red light, which the defendant says was visible to any one following the truck. There is a dispute in the testimony about the visibility or existence of the light. It is well settled in this state that the violation of a statute is negligence. Speight v. Simonsen, 115 Or. 618, 239 P. 542. Negligence, which is the proximate cause of an injury to a party, is a wrong to that party. The wrong may arise from violation of a natural right, or from the violation of a statute, which is "a rule prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong."

The statute, embodied in chapter 371, Laws of Oregon 1921, in section 3, paragraph 5, subdivision (c), requires that:

"Every motor vehicle, tractor, trailer or semitrailer, when on the highways of this state at night, shall have on the rear thereof and to the left of the axis thereof, or in the center of the rear of such vehicle, one lamp capable of displaying a red light visible for a distance of at least 100 feet behind such vehicle. * * *"

Because the defendant did not have a red light on the rear of its truck, or the trailer thereof, it was guilty of negligence, and, as thus expressed, if it was the proximate cause of the injury to the plaintiff, she is entitled to recover; other things being regular. The contention of the defendant is that the proximate cause of the injury was the negligence of the plaintiff's father, who was driving the automobile, in that it was admitted in the testimony that the night was dark and rainy, that his windshield was so blurred by the rain that he could not see distinctly, and that his vision was impaired by the glare of the headlights of oncoming automobiles meeting him, so that, as he says, he did not see the defendant's truck until he was within 5 or 6 feet of it, whereby the collision resulted.

It is argued that in a large degree, at least, he was as one driving in the night blindfolded. We may say there is evidence tending to show the father was negligent, but in that respect the best that can be said for the defendant, in view of the verdict for the plaintiff, is that the injury was the product of the concurring negligence of the defendant and of the father. There is testimony to the effect that there was no red light visible on the defendant's truck, and assuredly there was none on the rear. This negligence at least was operant all through the transaction. In a dispute on a kindred question in Murphy v. Hawthorne (Or.) 244 P. 79, respecting the negligence of the party driving the car which overtook and collided with a stationary truck, Mr. Justice Belt said:

"* * * Plaintiff had a right to assume, in the absence of notice to the contrary, that defendant would not put his dusty, gray colored truck on the highway after dark without displaying a red light on the rear thereof. If the truck had been lighted, the jury might well have drawn the reasonable inference that plaintiff would have been able to avoid striking it"--citing authorities.

In Louisville Home Telephone Company v. Gasper, 123 Ky. 128, 93 S.W. 1057, 9 L. R. A. (N. S.) 548, Mr. Justice Settle discusses a case where the negligence of two different persons acting independently of each other caused the injury to the plaintiff. There a wagon driven carelessly through an alley struck a guy wire of the telephone company, which was so placed that it was difficult to observe, and the result was the wagon was overturned and struck the plaintiff. The court said:

"Manifestly, the injury complained of by appellee would not have been inflicted, but for the negligence of the driver of the wagon; but this is not truer than the further fact that the accident would not have occurred, notwithstanding the negligence of the driver, had not the original or primary negligence of appellant operated to bring it about. In other words, appellee was injured by the immediate negligence of the driver of the wagon, and the primary negligence of appellant; the negligence of the two concurring to cause it, and the injury being such as the

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