Tokstad v. Lund

• Decision Date: 18 March 1970
• Parties: Nestor TOKSTAD, Jr., Appellant, v. Vernon LUND and Dean A. McKean and Clara McKean, doing business under the assumed name of Lebanon Electric, Respondents.
• Court: Oregon Supreme Court

Page 938

466 P.2d 938

255 Or. 305

Nestor TOKSTAD, Jr., Appellant, v. Vernon LUND and Dean A. McKean and Clara McKean, doing

business under the assumed name of Lebanon

Electric, Respondents.

Supreme Court of Oregon.

Argued and Submitted Dec. 48 1968, reargued Dec. 11, 1969.

Decided March 18, 1970.

Sam F. Speerstra, Salem, argued the cause for appellant. On the brief were Rhoten, Rhoten & Speerstra, Salem.

Otto R. Skopil, Jr., Salem, argued the cause for respondent Lund. On the brief were Williams, Skopil, Miller & Beck, Salem.

Robert B. McConville, Salem, argued the cause and filed a brief for respondents McKean.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE and HOLMAN, JJ.

DENECKE, Justice.

The plaintiff was injured when a Jeep which he was operating was struck by a vehicle operated by the defendant Lund. The McKeans were joined as defendants upon the ground that they were Lund's employers. The court directed a verdict for the McKeans and the jury returned a verdict for Lund. Plaintiff appeals.

The plaintiff contends that the trial court erred in not instructing the jury that the defendant Lund was negligent as a matter of law.

The scene of the accident was near the summit of a pass through the Cascade Mountains. It was snowing and there was packed snow on the highway. A truck had stalled blocking part of Lund's lane and all of the other lane. After the defendant Lund drove around the stalled truck he was unable to keep his vehicle upon his right side of the highway. He slid across the center of the road into the plaintiff's vehicle, which was parked in accordance with a police officer's direction on plaintiff's side of the road.

A statute requires a driver to stay upon his own side of the highway and the law in this state is that a violation of a statute is negligence per se. Nevertheless, we have held that a failure to stay upon the right side of the road is not negligence per se if the offending driver went on the wrong side through no fault of his own. Raz v. Mills, 231 Or. 220, 227--228, 372 P.2d 955 (1962); Harrison v. Avedovech, 249 Or. 584, 588--590, 439 P.2d 877 (1968).

There was evidence that although the defendant Lund was upon the wrong side of the road when he struck plaintiff's vehicle, the defendant, nevertheless, was acting as a reasonably prudent person. For this reason the trial court was correct in refusing to instruct as plaintiff requested.

At the defendant Lund's request the trial court instructed the jury that a statute requires the operator of a truck that is disabled upon the highway to place red flags upon the highway so that approaching vehicles can see the flags at least 600 feet from the disabled vehicle; and that if the jury found that the plaintiff's injuries were caused solely by the failure of the driver of the stalled truck to comply with this statute, they should find in Lund's favor.

The plaintiff excepted to the giving of this instruction upon the ground that the failure of the driver of the stalled truck to put out flags had nothing to do with the collision.

No flags had been put out. However, we conclude that the failure to do so could not have been a cause of the collision. Therefore, the trial court should not have instructed as it did.

The defendant Lund was traveling downhill, going northwest. The truck was stalled in a diagonal direction across part of the highway. Lund testified that the distance between the front of the truck and the snow bank at the edge of the road on Lund's side was seven feet. There is no evidence regarding how far Lund was from the truck when he first saw it or realized that it was stalled. A car which was preceding Lund by about a quarter of a mile went around the truck. When Lund was about 30 feet from the truck he first saw the plaintiff's car stopped about 30 feet beyond the truck across the highway on plaintiff's side. The truck had previously obstructed Lund's vision of plaintiff's car. Before he first saw plaintiff's car, Lund had been 'letting up speed continuously' and at the place where he first saw plaintiff's car he was going 10 miles per hour. A police officer standing approximately abreast of plaintiff's car directed Lund to get over into and keep in the snow on Lund's right side. Although Lund was going only about one mile per hour at this time, he slowly slid downgrade approximately 30 feet into plaintiff's car. Plaintiff's car was parked on the low side of a banked curve of an unknown degree.

The failure of the driver of the stalled truck to put out the warning flags was not a cause of the collision. There is no indication that such warning flags would have affected Lund's actions. He saw the stalled truck, at what distance is not known, but far enough so that he slowed to 10 miles per hour by the time he was 30 feet from the truck. There was no evidence, direct or indirect, that Lund would have driven at a slower speed if he had seen red flags. When Lund observed the plaintiff's vehicle and others stopped beyond the stalled truck he proceeded cautiously and his vehicle was practically stopped when it started to slide down upon plaintiff. There was no direct or indirect evidence that if Lund had seen red flags earlier he would not have tried to go past the stalled truck as he did. The police officer said that traffic going in Lund's direction was going through and the officer was there to direct them to try to drive on the snow on the right of the road on their way through.

In Shelton v. Lowell, 196 Or. 430, 440, 249 P.2d 958 (1952), the stalled truck did not put out flags. An oncoming truck and trailer came around a curve at a speed of 40 to 55 miles per hour at a distance of about 300 feet from the stalled truck. When the oncoming truck was only about 60 feet away from the stalled vehicle the oncoming driver realized the vehicle was stalled and for the first time applied the brakes. The implication of causation is clear: if warning flags had been put out, the oncoming driver would have had warning for at least 600 feet that there was danger ahead so he could have applied his brakes earlier and stopped safely.

In Frame v. Arrow Towing Service, 155 Or. 522, 64 P.2d 1312 (1937), the defendant towing service failed to put out warning signals that they were stopped on the highway salvaging another vehicle. A motorist came along at a speed of 42 miles per hour, which he did not diminish, struck the towed car and was deflected into plaintiff. Again, the inference is apparent: if warning signals had been put out, the oncoming motorist would have had an opportunity to slacken his speed and thus avoid the danger.

Causation is generally a question for the trier of fact to decide; however, there must be some evidence, direct or indirect, upon which the trier of fact can base its findings. We find there is no such evidence in this case and the judgment in favor of the defendant Lund must be reversed.

The trial court directed a verdict in favor of the McKeans upon the ground that there was no evidence that at the time of the accident Lund was acting as an employee of the McKeans.

Lund's residence was in Salem, Oregon. The McKean's business, Lebanon Electric was conducted out of Lebanon, Oregon. Lebanon Electric had the work of wiring a plywood mill being constructed in Redmond, Oregon. Redmond is across the mountains, more than 100 miles from Salem or Lebanon. Lund was the foreman of the Redmond job for Lebanon Electric. The work was started in the fall. Apparently, Lund lived in Redmond most of the time the job was being performed. He testified that he received $8.40 subsistence pay per day to which he was entitled if he was on the job during all or any part of the day.

Lund drove his own car. There were no Lebanon Electric vehicles at the job site. Lund testified he was paid 'travel time' only for going to Redmond initially at the start of the job and for returning at the completion of the job. From the words and context of this testimony about 'travel time' the witness could be deemed to have intended to state that he was paid travel expense or he was paid for the time he spent traveling. Lund on occasion was called by Lebanon Electric to come to the Lebanon office. There was no evidence regarding whether he was paid for his time and travel expense in making these trips.

The accident occurred on December 24. Lund testified he was coming home to Salem for Christmas. Lund kept the time records for himself and the other employees on the Redmond job. The time sheet for December 24 stated that Lund was due subsistence pay and he testified he received $8.40 subsistence pay for that date. The record also states that Lund worked eight hours straight time on that date.

Lund first testified he worked eight hours on the twenty-fourth, but he was not working at the time of the accident. He said he went to work early on the morning of the twenty-fourth, but did not remember the exact time. The accident happened about 12:45 p.m. and he said he left the job site about 90 minutes earlier. He later testified that he worked only four hours on the twenty-fourth rather than eight, and that he worked 12 hours on the twenty-third. He admitted that he made the work record out for the twenty-third to show that he worked only eight hours straight time. He was paid for eight hours straight time for both the twenty-third and twenty-fourth.

From this evidence the jury could find that Lund was paid for the time during which the accident occurred. An employer and an employee may make a variety of arrangements covering an employee going between his residence and a distant job site, including paying the employee his hourly rate for the time spent going to or from the job.

The payment of wages is evidence from which the trier of fact can find that the employee is in the service of his employer during the period for which such wages...