Townsend v. Jaloff

• Citation: 124 Or. 644,264 P. 349
• Parties: TOWNSEND v. JALOFF. [*]
• Decision Date: 14 February 1928
• Court: Supreme Court of Oregon

264 P. 349

124 Or. 644

TOWNSEND v. JALOFF. ^[*]

Supreme Court of Oregon

February 14, 1928

Department 1.

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

Action by Carrie Townsend, administratrix of the estate of J. W Townsend, deceased, against A. Jaloff, doing business under the firm name and style of the Columbia Stages. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action for damages, brought by plaintiff as administratrix of the estate of J. W. Townsend, deceased. At all times mentioned herein, the defendant was engaged in operating a line of stages over the Columbia river highway under the assumed name of "Columbia Stages." On November 11 1924, Townsend, plaintiff's intestate, was operating a milk truck over that portion of the Columbia river highway situate near Fairview, Multnomah county, Or. Between the hours of 8 and 9 a. m. on that day, Townsend was driving his truck in a westerly direction on the highway above named, and when he reached a point about one mile west of Fairview he halted the truck to deliver milk to a customer. The truck was brought to a standstill on the northerly and right side of the paved way, with the two right wheels 12 to 18 inches off the pavement.

The plaintiff avers that her intestate, after delivering the milk, returned to the car, and when about to start the truck was run into by one of defendant's stages, suffering injuries from which he died. She alleges negligence upon the part of the defendant in that he failed to keep a proper lookout for vehicles ahead of him; that, notwithstanding plaintiff's intestate left plenty of room for vehicles going west to turn to the left, defendant negligently turned to the right and drove off the surfaced highway; that the defendant was operating his car at a dangerous and reckless rate of speed in view of the situation, and negligently failed to have it under control.

The defendant admitted the first two paragraphs of the complaint but denied each and every other allegation contained therein. For a further and separate defense, defendant alleged that while he was carefully operating his stage in a westerly direction on the Columbia river highway on the date of the accident, and when he had reached a certain point on that highway, he discovered the intestate's automobile, wholly parked upon the paved surface of the highway, and, in order to avoid an imminent rear end collision with the machine of plaintiff's intestate or a head-on collision with an automobile approaching from the opposite direction, he swung to the right of intestate's automobile and was proceeding carefully, when the intestate, suddenly and unexpectedly and negligently, and before defendant's stage could be brought to a stop, jumped directly in front thereof, which negligent act resulted in the injury described in the complaint.

The reply put in issue the new matter contained in the answer. Plaintiff recovered a judgment for $5,000. Defendant appeals and assigns error chiefly in the refusal of the court to charge the jury with reference to the law prohibiting "parking" upon the highways of this state.

Samuel B. Weinstein and A. E. Clark, both of Portland (Frank J. Lonergan, of Portland, on the brief), for appellant.

Paul R. Harris, of Portland (W. M. Davis, of Portland, on the brief), for respondent.

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

The disposition of this case involves the application and exposition of a statutory provision reading:

"No vehicle shall be parked upon the maintraveled portion of the highways of this state; provided, that this shall not apply to any vehicle so disabled as to prohibit the moving of the same." Subdivision 19, § 2, c. 371, p. 712, Gen. Laws of Or. 1921.

The defendant requested the court to give the following instructions:

"I instruct you that under the laws of the state of Oregon the parking of a vehicle on the main-traveled portion of the highway is prohibited. The language of the statute on that subject is as follows:

" 'No vehicle shall be parked upon the maintraveled portion of the highways of this state; provided that this shall not apply to any vehicle so disabled as to prohibit the moving of the same.'

"In this connection, I instruct you that the milk truck of J. W. Townsend, the plaintiff's decedent, was parked on the main-traveled portion of the highway at the time and place of the accident mentioned in plaintiff's complaint, and on account thereof plaintiff's decedent was guilty of negligence as a matter of law. And in this connection I instruct you further that if you find from the evidence in this case that the negligence of plaintiff's decedent in this regard contributed to and was the proximate cause of the accident complained about, then your verdict must be for the defendant."

For a definition of the term "park," the plaintiff relies upon the case of Dare v. Boss, 111 Or. 190, 224 P. 646. In that case the learned justice who wrote the opinion said:

"We take it that it [the word 'park'] means something more than a mere temporary or momentary stoppage on the road for a necessary purpose."

Now, in determining upon the meaning of the excerpt just quoted, let us look to the facts in that case and to the court's observation relating to the duty of removing a disabled car from the main-traveled portion of the highway. The plaintiff therein was traveling on the main highway between Scappoose and Portland, when one of the tires of his car became punctured, and he pulled the car to the right side of the highway, leaving the left wheels from 18 to 20 inches inside the pavement. While he was repairing the puncture the defendant's car crashed into him, inflicting the injuries described in the complaint. In that case the plaintiff testified that one of the front tires was so flattened as a result of the puncture that it would have been dangerous to drive further with it in that condition; that he brought his car to a standstill as far off the road as appeared safe; and that there was sufficient space for the car operated by the defendants to pass him without injury. In rendering its decision in that case the court held that this statute does not require a person to take "chances of any serious injury by removal of a disabled car"; that the "rule of...