Van Zandt v. Goodman et al.

• Decision Date: 22 April 1947
• Citation: 179 P.2d 724,181 Or. 80
• Parties: VAN ZANDT <I>v.</I> GOODMAN ET AL.
• Court: Oregon Supreme Court

181 Or. 80

179 P.2d 724

VAN ZANDT

v. GOODMAN ET AL.

Supreme Court of Oregon.

Argued March 18, 1947.

Affirmed April 22, 1947.

Automobiles — Right of way

1. The right of way conferred by statute is not absolute, nor a right which may be exercised without due regard to attendant circumstances and safety and rights of others.

Automobiles — Basic rule

2. The statute providing that no person shall drive a vehicle upon highway at speed greater than is reasonable and prudent, having due regard to traffic, surface and width of highway, and hazard at intersections, and other conditions then existing, is applicable to drivers having the right of way as well as to those not having it.

Automobiles — Left turn

3. In determining whether an approaching vehicle not in intersection is so close thereto as to constitute an immediate hazard, within statute requiring driver making left turn at intersection to yield right of way to vehicle approaching from opposite direction, the question must be determined by the relevant factors, including distance of approaching vehicle from intersection, width of crossing, speed of respective vehicles, visibility, other traffic, etc.

Automobiles — Left turn

4. Whether driver of automobile in which plaintiff was riding, in making left-hand turn on four-lane highway, was justified as a reasonably prudent person in believing that he could safely pass through intersection in front of defendant's oncoming automobile, was for jury under the evidence.

Automobiles — Right of way

5. Generally, question whether motorist violated a statute with respect to right of way is one of fact, but the evidence may be such that the court will be warranted in declaring one or the other driver guilty of negligence as a matter of law.

Automobiles — Right of way

6. Even if driver of automobile in which plaintiff was riding violated the right of way in attempting to make left-hand turn on four-lane highway in front of defendant's approaching automobile, defendant could be held liable for injuries sustained by plaintiff in resulting collision, if defendant failed to operate his automobile as a reasonably prudent person, with knowledge that he had right of way, would operate his automobile under like circumstances.

Evidence — Physical facts

7. A verdict or finding cannot be based on evidence which is opposed to established physical facts.

Evidence — Physical facts

8. The "physical facts rule" cannot come into play with respect to the position, speed, etc., of movable objects, if facts relative to speed, position, etc., must be established by oral evidence or where it is necessary to make estimates or measurements or to start with an assumption of existence of a fact.

Evidence — Physical facts

9. Trial court was not required to reject testimony of driver of automobile in which plaintiff was riding concerning position of defendant's automobile under the so-called "incontrovertible physical facts rule" because of later statements by such witness, which, by hypothesis, were absurd.

Automobiles — Negligence

10. Evidence presented question for jury as to whether defendant was guilty of negligence in failing to observe automobile in which plaintiff was riding approaching from opposite direction and in failing to do anything to avoid collision when such automobile made a left-hand turn in front of defendant until very moment of its occurrence, even if driver of automobile in which plaintiff was riding was also negligent in having violated the right of way.

Negligence — Reasonable care

11. The right to indulge in presumption that another will not violate the law does not relieve the one indulging that presumption from duty of exercising reasonable care for safety of others.

                  See 38 Am. Jur. 873. Right to assume other traveler will use
                due care, notes, 21 A.L.R. 988; 37 A.L.R. 509; 47 A.L.R. 622
                5 Am. Jur. 600; 42 C.J., Motor vehicles, § 702
                

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

E.K. Oppenheimer, of Portland (with Wilbur, Beckett, Oppenheimer, Mautz & Souther, of Portland, and Charles T. Seivers, of Oregon City, on brief), for appellant.

Glenn R. Jack, of Oregon City (Butler & Jack, of Oregon City, on brief), for respondent.

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY, HAY and WINSLOW, Justices.

AFFIRMED.

LUSK, J.

The defendant Goodman appeals from a judgment in favor of the plaintiff in a personal injury action growing out of a collision between automobiles.

The accident occurred on the afternoon of August 14, 1945, in Clackamas County on the Superhighway, a four lane arterial highway connecting Oregon City and Portland. Plaintiff was a guest passenger in a southbound automobile driven by the defendant Cooper. The defendant Goodman, accompanied by his wife and two small children, was driving his car north to Portland. The vehicles collided at an intersection when Cooper was in the act of making a left-hand turn. Plaintiff sued both Cooper and Goodman. The court, being of the opinion that the evidence failed to disclose gross negligence on the part of Cooper, granted him a nonsuit. The case against Goodman was submitted to the jury, which returned a verdict for the plaintiff. The sole assignment of error is based upon the court's denial of a motion for a directed verdict made by Goodman, who, for convenience, will hereinafter be referred to as the defendant.

The Superhighway runs north and south and is intersected by Jennings Avenue at right angles. Railroad Avenue, which runs in a generally northwesterly and southeasterly direction, comes into the east side of the Superhighway and the south side of Jennings Avenue at an acute angle. About fifty feet distant to the southwest, it is paralleled by the tracks of an interurban railroad, which cross the Superhighway. There are railroad crossing signs on either side of the car tracks; a wigwag which operates when streetcars approach the Superhighway; and, according to one witness, an overhead blinker light at the intersection. Photographs of the scene, however, indicate that there is no such blinker light. Entrances to the Superhighway are guarded by stop signs.

The four lanes of the Superhighway are each ten feet in width, the inner lanes being separated by double yellow lines between which are laid concrete markers. Approaching the intersection from the north there is a slight grade which limits visibility to the south for one at the bottom of the grade. But, as the intersection is neared, there is an unobstructed view for at least three-quarters of a mile. Approaching the intersection from the south the view is unobstructed. The shoulder on the east side of the Superhighway, both north and south of the intersection, is about ten feet in width and is hard surfaced.

Traffic on the Superhighway is very heavy. On the other two roads mentioned it is comparatively light.

Both the plaintiff and the defendant were rendered unconscious in the accident and all memory of it was erased from their minds. Of the persons immediately involved only Cooper and Mrs. Goodman were able to give testimony which threw light on the circumstances of the collision.

The day was clear, visibility good, and the pavement dry. There were no automobiles in the immediate vicinity other than Cooper's and the defendant's.

Cooper, called by plaintiff as an adverse witness, testified that he and the plaintiff left their common place of work in Portland for Oregon City, where they resided, shortly after five o'clock in the afternoon. On the way they decided to go first to a town called Gladstone, which they would reach by way of Railroad Avenue. Cooper's speed never exceeded thirty-five miles per hour. When he was about 400 feet from the intersection in question he reduced his speed by taking his foot off the accelerator. At about 150 feet from the intersection he extended his hand and arm in signal for a left-hand turn, and kept it so extended until he reached the intersection. His intention was to cross the highway into Railroad Avenue. We quote from his testimony:

"Q As you came up to that intersection of Jennings Avenue, then what did you do?

"A I give my lefthand signal approximately 150 feet before the intersection and begin to drift down to make the turn.

"Q Which lane of traffic did you approach that intersection in?

"A In the inside lane going south.

"Q What did you observe about traffic approaching from the south?

"A There was one car coming from the south, I noticed, and as I approached the intersection I gave a judgment of approximately 250 feet before I turned in.

"Q Then what did you do?

"A I drifted down then. We were approaching then about fifteen miles an hour, and the last I knew before the impact I was just crossing the yellow line into the outside lane of the northbound traffic.

"Q What happened?

"A Well, the accident occurred right there.

"Q What part of your car came in contact with what part of the other car?

"A My car was struck on the righthand side frontward and back towards the door.

* * * "Q Now, I notice you said at the time you approached the turn you observed one car coming from the south, at the time you were on the center line or approaching the center line, — that is the dual center line dividing the four lanes. About how far away was that car, Mr. Cooper?

"A I judge it was about 250 feet.

"Q And did you stop from that time on until the impact?

"A I did not."

At another point in his examination, Cooper testified that he saw the Goodman car when he was "making the turn", and headed in "kind of a southeasterly direction", and he judged then that the Goodman car was "at about 250 feet".

He was unable to estimate the speed of the Goodman car. He saw it first at the time he gave his signal 150 feet from the intersection, but would not say how far away it was at that time. On cross-examination he stated more than once that when he was crossing the double lines in the center of the...