Senger v. Vancouver-Portland Bus Co.
| Decision Date | 05 December 1956 |
| Docket Number | VANCOUVER-PORTLAND |
| Parties | , 62 A.L.R.2d 265 Tony SENGER, Respondent, v.BUS CO., an Oregon corporation, Appellant. |
| Court | Oregon Supreme Court |
Wayne A. Williamson and Mautz, Souther, Spaulding, Denecke & Kinsey, Portland, for appellant.
Hutchinson, Schwab & Burdick and Cake, Jaureguy & Hardy, Portland, for the petition.
Nels Peterson, Portland, and others filed a brief as amici curiae.
Our original opinion in this case was handed down June 13, 1956: Senger v. Vancouver-Portland Bus Co., Or., 298 P.2d 835. The plaintiff has filed a petition for rehearing in which he alleges that we committed manifest error in our opinion in the following respects:
'I
'In stating the facts and in quoting the law.
'(2) Driving at an unreasonable speed and
'(3) Driving out of control.
'III
'In not determining that there was a question of proximate cause for the jury.'
Plaintiff has also filed a 30-page typewritten brief in support of his petition. Also, in support of the petition a printed brief has been filed by a large number of prominent trial attorneys as amici curiae.
A careful examination of those briefs reveals that counsel have misconstrued our opinion. For example, at the outset of his discussion of point II of his petition for rehearing, the plaintiff makes the following statement:
'Incredibly, the court holds that as to persons proceeding against traffic on a one-way street, any other driver can:
'(3) Keep no lookout, and such conduct is not actionable negligence.
'In other words, the one-way traffic ordinance offender is a trespasser.'
Plaintiff in his brief, as well as the attorneys appearing as amici curiae in their brief, assert that we quoted with apparent approval an instruction given by the trial court in the case of Johnson v. Updegrave, 186 Or. 196, 201, 206 P.2d 91. They correctly point out that this instruction so quoted was rejected in the Updegrave case and caused a reversal of the judgment in that action. Counsel insist that we have, in effect, overruled our decision in the Updegrave case, as well as our decision in the later case of Walker v. Penner, 190 Or. 542, 227 P.2d 316, and have returned to the rule established in the case of Schassen v. Columbia Gorge Motor Coach System, 126 Or. 363, 270 P. 530. In Walker v. Penner, supra, we set forth the rule applicable in this state and as established in the Updegrave opinion, which rule is quoted at length in our original opinion in the instant litigation, and we expressly overruled the decision in the Schassen case.
In writing our original opinion we had no intention of disturbing the rule announced in the Updegrave and Penner cases. That rule is now established as the law of this state. It will be observed that under that rule a motor vehicle operator, although he need not anticipate negligence on the part of any other person and may at all times assume until he has notice to the contrary, or until by the exercise of due care on his part he should and would have known to the contrary, that other persons using the highway will exercise due care and obey the law, and to act accordingly, yet he is not relieved of his continuing duty to maintain such a lookout as a reasonably prudent person would maintain in the same or similar circumstances. Ordinarily whether such a lookout has been maintained, and the matter of proximate cause, are questions of fact for jury determination.
However, 'a prudent driver, upon approaching a street which he knows to be a one way street, looks for traffic in the direction in which it is supposed to travel and he cannot, by any rule of law or reason, be expected to anticipate that anyone is going to violate the law by proceeding into the intersection from the wrong way.' Daly v. Employers Liability Assur. Corporation, Ltd., 15 So.2d 396, 399. This is particularly true at a blind corner such as was involved in the instant litigation. This does not mean, however, that a driver of a motor...
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Phillips v. Creighton
...person would maintain in the same or similar circumstances. See Walker v. Penner, 190 Or. 542, 227 P.2d 316 and Senger v. Vancouver-Portland Bus Co., Or., 304 P.2d 448. The instruction requested by plaintiff makes no reference to the circumstances existing at the time and place of this acci......
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State v. O'Neill
...in a specially concurring opinion in Senger v. Vancouver-Portland Bus Co., supra, 209 Or. at page 47, 298 P.2d (835), at page 839 (304 P.2d 448), the rule against considering a constitutional question for the first time on appeal is not inflexible, but the record from the trial court must a......
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