Shelton v. Lowell

• Citation: 249 P.2d 958,196 Or. 430
• Parties: SHELTON v. LOWELL et al.
• Decision Date: 06 November 1952
• Court: Supreme Court of Oregon

Page 958

249 P.2d 958

196 Or. 430

SHELTON v. LOWELL et al.

Supreme Court of Oregon.

Argued Sept. 25, 1952.

Decided Nov. 6, 1952.

Clarence J. Young, Portland (Koerner, Young, McColloch & Dezendorf, of Portland, and John Gordon Gearin and William D. Campbell, both of Portland, on the brief), for appellants.

Paul Geddes, of Roseburg (Carl M. Felker, of Roseburg, on the brief), for respondent.

Before BRAND, Chief Justice, and ROSSMAN, LUSK, LATOURETTE and TOOZE, Justices.

LATOURETTE, Justice.

Plaintiff Shelton brought action against the defendants, Frank V. Lowell and Dorothy M. Lowell, dba Klamath Packing Co. (hereinafter referred to as 'Klamath company'), and Preston LeRoy Lavoy, their driver, and Los Angeles-Seattle Motor Express, Inc. (hereinafter referred to as 'Los Angeles Express'), a Washington corporation, and Earl S. Hamlett and Ellsworth O'Donnell, its drivers, to recover damages for personal injuries resulting from a motor vehicle collision between plaintiff's and Klamath company's vehicles on the Pacific highway a few miles north of the city of Drain and a few feet southerly of the stalled Los Angeles Express truck. The jury returned a verdict in favor of plaintiff against the defendants, Los Angeles Express, Hamlett and O'Donnell, the operators of the truck, in the sum of $65,000, general damages, and $2,031.45, special damages, and exculpated the other defendants. Judgment was entered on the verdict, and the defendants against whom the judgment was entered appeal.

Briefly the facts follow: on January 11, 1950, the 60-foot Los Angeles Express truck and trailer was proceeding northerly over the said highway when at about 2 p. m., because of a broken oil line, its truck became disabled and stopped upon a highway, occupying practically all of the easterly lane of such highway.

The collision occurred in the following manner: plaintiff was proceeding in his Chevrolet automobile in a southerly direction on his right-hand side of the road. Defendant Klamath company's Ford truck and trailer was proceeding northly in the lane occupied by, and southeasterly of, the stalled Los Angeles Express truck. After plaintiff's car had passed the stalled truck and trailer some six or eight feet, the Klamath company's truck and trailer came over into the westerly lane occupied by the plaintiff's car and struck it, forcing plaintiff's car up into the bank and seriously injuring plaintiff.

After the judgment was entered against the Los Angeles Express and its drivers, they moved for a judgment notwithstanding the verdict or, in the alternative, for an order setting aside the judgment and granting a new trial. The motions were denied by the trial court. On the appeal, error is predicated on the action of the trial court in the above respect and in the giving of, and failure to give, certain instructions.

The first assignment of error is that the court erred in denying appellants' motion for a directed verdict and for judgment notwithstanding the verdict. The grounds for the assignment of error follow: (1) that there was failure of proof to establish any negligence on the part of the defendants, or that any alleged negligence was the proximate cause of the accident; (2) that the plaintiff himself was guilty of contributory negligence, and (3) that the sole, proximate cause of the accident was the active motion of the two other vehicles, either singly or jointly.

In approaching the question of whether or not appellants were entitled to a directed verdict or for a judgment notwithstanding the verdict, we must keep in mind that plaintiff is entitled to the benefit of every reasonable inference which may be drawn from the evidence, and, where the evidence is in conflict, the court may not concern itself with the facts since they are exclusively for the determination of the jury.

The complaint contains several specifications of alleged negligence, and, if plaintiff has sustained any of them, the case was ripe for the jury; therefore, it will be unnecessary for us to consider all of the allegations at this time.

It is alleged that the defendants failed to place red flags, flares, reflectors or other devices not less than 100 feet or more than 300 feet to the front and rear of said parked truck. The evidence is conflicting on this point, there being testimony in the record that no such warnings were exhibited at all to the rear of the parked truck so as to give warning to oncoming traffic. Chapter 276, Oregon Laws 1947, requires that red flags be exhibited as alleged when a motor truck becomes disabled during the daytime, and, if defendants failed to comply with such law, they would be guilty of negligence per se. This was a jury question.

It is next alleged that the defendants parked their truck on the highway without leaving at least 16 feet of unobstructed width so as to enable two cars to pass each other while proceeding in opposite directions. It is secondly alleged that said defendants failed to move their truck to a point of safety off the main-traveled portion of the highway but permitted the same to remain thereon. It is thirdly alleged that defendants permitted their equipment to remain on the highway so that the same could not be seen by oncoming traffic for a reasonable distance because of curves in said highway to the north and south of said equipment. As these specifications of negligence are closely connected, we will consider them together.

Section 115-353, O.C.L.A., among other things, prohibits any person from leaving standing his vehicle on the main-traveled portion of the highway when it is practicable to leave his vehicle standing off of the traveled highway. In no event is he permitted to leave his vehicle standing on the highway unless a clear and unobstructed width of not less than 16 feet opposite such standing vehicle is left for free passage of other vehicles. It is conceded that defendants' truck did not leave the required width of 16 feet for free passage of other vehicles on the highway. The defendants plead, however, that they are exonerated by a further provision of the above section which is here quoted:

'The provisions of this section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position, * * *.'

They further state that the law is settled in Oregon that a vehicle disabled to such an extent that it cannot be moved under its own power (as with the case of appellants' truck) is not amenable to that portion of the statute requiring a 16-foot clearance. We disagree with this statement.

The Oregon cases cited by appellants, other than Frame v. Arrow Towing Service, 155 Or. 522, 64 P.2d 1312, were based on an early statute which is entirely different from the statute as now written. The factual situation in the Frame case differs quite materially from that of the present case. In that case, the Menefee car was totally disabled so that it could not move under its own power, and a towing car was promptly sent for. The judgment, however, was in favor of Menefee and against the Arrow Towing Service, which appealed, and the court held that it was error to instruct the jury on an abstract proposition of alw tending to confuse the jury.

Morris v. Fitzwater, 187 Or. 191, 210 P.2d 104, was evidently overlooked by counsel because it was held in that case that a disabled automobile is one that cannot safely be moved under its own power. In that case, the lights upon the automobile became extinguished.

We are not aware of any Oregon case where the foregoing exculpatory statute has been considered in a situation where the stalled vehicle could have been moved by means other than under its own power; at least, none has been called to our attention. In construing the statute, we must give to it a practical and common-sense meaning and try to ascertain the intent of the legislature. The obvious meaning of that section of the statute relied upon is that where the car is temporarily disabled so that it is impossible to avoid temporarily leaving such vehicle on the highway, the driver of the stalled car is relieved from responsibility. Where an emergency is created either by failure of power, lights, locked brakes, tire trouble, etc., the disabled car is not permitted to remain on the highway for a protracted length of time when there is a reasonable opportunity to remove it, and, in the exercise of reasonable care, it could have been removed. In construing a statute similar to ours, the Iowa Supreme Court, in Boger v. Kellner, 239 Iowa 1189, 33 N.W.2d 369, 370, had this to say:

'When the car stopped it was, of course, disabled. Code Section 321.355 [I.C.A.] provides the preceding section shall not apply when a car is so disabled it is impossible to avoid stopping and temporarily leaving it in such position. The word 'impossible' as used in this statute should be given a practical construction. * * * A literal construction would almost nullify the statute. The word may be construed to mean 'not reasonably practicable.' * * * The word 'temporarily' indicates the statute contemplates the removal of the disabled vehicle with all reasonable expediency.'

In the instant case, the evidence discloses that the defendants' truck remained on the traveled portion of the highway, occupying practically the entire width of the northbound east lane thereof for over two-and-one-half hours while one of the drivers went to Eugene, some 40 miles distant, to obtain fuel and a new fuel line. It further appears that at the time the truck was stalld another truck belonging to the same company came up behind it. The drivers of the latter truck, noting the disability of the stalled truck, could have moved the disabled equipment, according to Mr. Hamlett, whose testimony follows:

'Q. Did you consider the...