Sylvis v. Hays

• Decision Date: 19 January 1932
• Citation: 138 Or. 418,6 P.2d 1098
• Parties: SYLVIS v. HAYS et al.
• Court: Oregon Supreme Court

6 P.2d 1098

138 Or. 418

SYLVIS v. HAYS et al.

Supreme Court of Oregon

January 19, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Mary MacL. Sylvis against S. L. Hays and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

This is an action for damages arising out of a certain automobile accident wherein the automobile driven by plaintiff, and that owned by defendant S. L. Hays and operated by defendant Lena M. Hays, his wife, collided at the intersection of East Seventh and Weidler streets in the city of Portland on May 16, 1928.

The plaintiff alleges, among other things, the existence of a certain city ordinance, under the terms of which all traffic approaching Weidler street from the north or south was required to stop before entering that street, and to yield the right of way to traffic thereon; that, on the date mentioned, plaintiff was driving her automobile in a westerly direction on the right side of Weidler street at a speed not in excess of twenty miles per hour, and as she approached the intersection of that street with East Seventh street she saw the automobile of defendants approaching from the north on Seventh street; that plaintiff proceeded on into the intersection, driving carefully and at the same rate of speed; and that after she had reached a point about three-fourths of the distance across the intersection defendant Lena M. Hays drove the approaching car into the intersection without coming to a stop or changing the speed at which she had been traveling, which was approximately twenty miles per hour, and collided with and struck plaintiff's automobile, damaging it and causing injuries to plaintiff. She alleges that the collision was caused solely by the negligence of defendant Lena M. Hays, in that she failed to yield to plaintiff the right of way and the privilege of first crossing the intersection, and failed to stop before entering the intersection; that she failed to keep a proper lookout for traffic; that, after she saw plaintiff's automobile and that a collision was imminent she made no attempt whatsoever to avoid the collision "whereas she could easily have avoided same by the exercise of reasonable care and management of her said automobile after so seeing the danger of said collision." She alleges that, by reason thereof, she has been damaged in the sum of $10,000, in which sum she demands judgment.

The defendants by their answer deny all negligence upon their part, and, for a further and separate answer and affirmative defense, allege: "That, on May 16, 1928, at about the hour of 4:30 o'clock P. M., defendants were operating a certain Overland automobile southerly on East Seventh Street in the city of Portland, Oregon, near the intersection thereof with Weidler Street, which said street intersects East Seventh Street at right angles; that, on reaching said intersection and before entering the same, defendants brought said Overland automobile to a stop, and, after doing so proceeded across said intersection; that, owing to the carelessness and recklessness of the plaintiff as hereinafter more particularly described, a collision then and there took place in said intersection between said Overland automobile and an Essex automobile operated by plaintiff and proceeding westerly along Weidler Street at said intersection."

The defendants then aver that the plaintiff was negligent in failing to yield the right of way to defendants' automobile; in failing to have her automobile under proper or any control so as to avoid a collision; in operating her automobile at a careless and reckless rate of speed; and in failing to keep a proper lookout for traffic at the intersection, including the automobile operated by defendants. The answer then avers that whatever damage the plaintiff sustained was caused by her own negligence, and not by that of the defendants.

The plaintiff, replying, denied generally and specifically each of the allegations contained in defendants' answer.

As a result of the trial, the jury returned a verdict for the defendants and against the plaintiff. From the judgment entered thereon the plaintiff has appealed, assigning error of the court in the following particulars:

In overruling the plaintiff's objection to the following questions put to the plaintiff on cross-examination:

"Q. It is a fact, is it not, Mrs. Sylvis, that when you are at a point fifty feet back and to the east of the east curb line of Seventh Street, that you cannot see two hundred feet to your right and north? ***

"Q. But nevertheless, when you were fifty feet back, in fact when you were down a distance of thirty feet or twenty feet back, you couldn't from that point see two hundred feet to your right and to the north up East Seventh Street, could you?"

In overruling the plaintiff's objection to the following question put to Witness Ross B. Hammond on cross-examination: "Q. I will ask you then, Mr. Hammond, if when you are at a point fifty feet to the east of the east curb line of Seventh Street, driving a car, you are able to see two hundred feet to the north along Seventh Street? *** A. I would say that you could not see two hundred feet on Seventh Street north."

In giving to the jury the following instruction requested by the defendant: "You are instructed that the statutes of this state provide that the operator of an automobile shall not operate the same at a rate of speed in excess of fifteen miles per hour through any intersection of highways in the state, if, at any point fifty feet back from the intersection, said operator has not a clear and unobstructed view of the intersecting highway for a distance of at least two hundred feet. Therefore, if you shall find from the evidence in this case that plaintiff, at any time from the time she was at Seventh Street or back fifty feet east of the east curb line of Seventh Street, did not have a clear and unobstructed view two hundred feet to the north on Seventh Street, she was required to slow down her car to a rate of speed not to exceed fifteen miles per hour for that space beginning fifty feet to the east of Seventh Street, and through Seventh Street."

In refusing to give the following instruction requested by plaintiff: "You are instructed as a matter of law that the speed permitted at the intersection of East Seventh and Weidler Streets at the time of the accident involved herein was twenty miles per hour."

The plaintiff states in her brief that for the reason that "the above listed errors involved practically the same question of law, they are assigned and will be treated together."

James L. Conley, of Portland (A. G. Fletcher and Calvin N. Souther, both of Portland, on the brief), for appellant.

W. H. Maguire, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for respondents.

BROWN, J. (after stating the facts as above).

In support of her appeal the plaintiff invokes section 9-224, Or. Code 1930, which provides that...