Speight v. Simonsen

• Decision Date: 29 September 1925
• Citation: 115 Or. 618,239 P. 542
• Parties: SPEIGHT v. SIMONSEN.
• Court: Oregon Supreme Court

239 P. 542

115 Or. 618

SPEIGHT v. SIMONSEN.

Supreme Court of Oregon

September 29, 1925

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by George Speight against Louis V. Simonsen. From a judgment for plaintiff, defendant appeals. Affirmed.

E. L McDougal, of Portland, for appellant.

E Pinder and W. P. La Roche, both of Portland, for respondent.

BURNETT, J.

The plaintiff claims that while he was riding his motorcycle in an easterly direction on the south side of a street in Portland, and when he had reached a point near the center of the intersection of that street with a cross street, the defendant came along the cross street in his automobile, and ran against the motorcycle, injuring the plaintiff in a manner stated. He says, and it is admitted, that there was an ordinance of the city of Portland in effect at the time that "vehicles approaching an intersecting street shall be under control so as to permit the vehicle on the right of the vehicle approaching to first cross the intersecting street," and that another section declares that "at all intersections the vehicle entering the intersection from the right of another vehicle entering said intersection shall have the right of way except over an emergency vehicle or street car."

It is said in the complaint that the proximate cause of the accident was wholly due and brought about by the carelessness and negligence of the defendant by violating said city ordinance, by not having his car under proper control, by exceeding the speed limit across the intersection, and by not giving to said plaintiff the right of way; that said accident would not have happened if the defendant had kept a proper lookout ahead, as he could have seen the said plaintiff's motorcycle entering said intersection ahead of him, and by the proper exercise of care and precaution he could have prevented said accident, but he failed to do so, and said accident resulted.

All the complaint is denied except the allegation of the ordinance in force in the city at the time. Narrating his defense, the defendant answers thus:

"That, as the defendant was going south on First street at a reasonable rate of speed, approaching the intersection of First street and Mill street, the plaintiff herein carelessly, recklessly and negligently was coasting down the hill on Mill street without the power on his motor in an easterly direction toward First street. That the defendant, during all the times herein mentioned, was on the right-hand side of Mill street, and the plaintiff herein, on his motorcycle, so directed the same as to make it appear that the said motorcycle would turn south on First street then changed and made another turn to the left, bringing the motorcycle directly across First street. That the defendant herein had in the meantime pulled toward the center of First street, and applied the brakes to said automobile, but that the plaintiff herein recklessly, carelessly, and negligently failed to apply his brakes, was coasting down said Mill street in a reckless, careless, and negligent manner, and without having his motorcycle under control, and that the plaintiff was further reckless, careless, and negligent in operating said motorcycle in violation of the law, in this that he was inexperienced in the operation of said motorcycle, and unlicensed as a driver. That said motorcycle was not properly equipped with the state license number, and not in good working order, and that the brakes were dirty and that as the result of negligence of the plaintiff, as above set forth, all of which occurred on or about August 13, 1920, in the city of Portland, Multnomah county, Or., on the streets as above set forth, the plaintiff contributed to his own negligence, and said injuries, if any, that were caused to the plaintiff were caused directly and proximately by the negligence of the plaintiff contributing to the injuries as above set forth."

This allegation is denied by the reply. At a jury trial the defendant moved for a nonsuit at the close of the evidence for the plaintiff, on the ground that the plaintiff was the unlicensed operator of an unlicensed motor vehicle on the public highway. It is contended by the defendant that this constituted contributory negligence, defeating the plaintiff's recovery. It is also urged that the court erred in overruling the motion for nonsuit because the plaintiff's own testimony showed that he approached the intersection with the intention of turning therein and failed to give timely warning of his intention by proper signal. The court overruled the motion for nonsuit as to all the grounds stated, and the case proceeded to verdict and judgment in favor of the plaintiff. The defendant appeals.

As to the matter of signal the answer does not charge contributory negligence on that ground. No mention is made in that pleading about failure to give a signal. Under the rule that the allegation and proofs must correspond, we cannot give attention to a ground of contributory negligence not charged in the answer. Knahtla v. Oregon Short Line Railway Co., 21 Or. 136, 27 P. 91.

It is admitted in the testimony that the plaintiff had no license to operate a motorcycle. Neither had he any license for the vehicle itself. It is well established that a violation of a statute commanding a certain duty is negligence per se. Beaver v. Mason, Ehrman & Co., 73 Or. 36, 143 P 1000; Cauldwell v. Bingham & Shelley Co., 84 Or. 257, 155 P. 190, 163 P. 827; Myrtle Point Transportation Co. v. Port of Coquille River, 86 Or. 311, 168 P. 625. Hence under the admitted...