Voight v. Nyberg

• Decision Date: 30 October 1959
• Citation: 218 Or. 383,345 P.2d 821
• Parties: Richard A. VOIGHT, Appellant, v. Willis NYBERG, Respondent.
• Court: Oregon Supreme Court

Page 821

345 P.2d 821

218 Or. 383

Richard A. VOIGHT, Appellant, v. Willis NYBERG, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 20, 1958.

Reargued and Submitted Oct. 8, 1959.

Decided Oct. 30, 1959.

Sam Kyle, Albany, for appellant. With him on the brief were Weatherford & Thompson, Albany.

Asa L. Lewelling, Salem, for respondent.

McALLISTER, Chief Justice.

This is an action to recover damages sustained when an automobile operated by the plaintiff, Richard A. Voight, allegedly was forced off the road and into a ditch by a station wagon owned and operated by the defendant, Willis Nyberg. The jury returned a verdict for the defendant and from the judgment based thereon, plaintiff has appealed. Plaintiff contends that the trial court erred in its instructions to the jury.

The accident occurred on January 17, 1953, on a paved two-lane highway a short distance east of Crawfordsville in Linn county. It was raining at the time of the accident. The highway runs east and west and at a point about one-fourth mile east of Crawfordsville is intersected from the south by the Brush Creek road. The plaintiff and defendant disagree as to how the accident occurred and we will first set out the plaintiff's version.

Plaintiff testified that he was traveling west at a speed of about 50 miles per hour and overtook defendant's station wagon which was traveling ahead of him in the same direction at a speed of about 35 miles per hour. Plaintiff followed the station wagon until the two vehicles had passed the last curve east of Crawfordsville and reached the straight stretch leading into town. Plaintiff then sounded his horn twice, speeded up, turned out to the left and started to pass defendant. The vehicles west then about 400 feet east of the Brush Creek road. The view ahead was clear into Crawfordsville and there were no oncoming cars. When plaintiff's vehicle was in the left hand lane with the front thereof only about 10 feet from the rear of defendant's vehicle, the defendant, without any warning, turned into the left lane directly in front of plaintiff. Plaintiff immediately applied his brakes and his car skidded straight forward still gaining on defendant's vehicle. To avoid hitting the rear of defendant's vehicle, plaintiff swerved back to his right. At about the same time, defendant first realized that plaintiff was attempting to pass and also swerved into the right lane again blocking the path of plaintiff's vehicle. In a further effort to avoid a collision, plaintiff turned still farther to the right and when his car hit the gravel shoulder it skidded into the ditch and upset. Ironically, the two vehicles had never collided.

According to defendant he intended to turn left when he reached the Brush Creek road. He testified that as he rounded the last curve east of Crawfordsville, he turned on his blinker light to indicate his intention to make a left turn. When defendant reached the straight stretch leading into Crawfordsville and could see that there were no cars coming toward him, he turned his car over into the left lane. Defendant admitted that he could not see behind him because the rear window of his station wagon was covered with mud. Defendant said that he 'started to get on the left side of the road' when he was still a considerable distance from the Brush Creek road so that 'if there was any traffic behind me it could go around to my right.' Defendant claimed that he did not hear plaintiff's horn. Defendant's vehicle was about halfway acorss the yellow line when he first heard the sound of plaintiff's car on the wet pavement behind him. He immediately pulled back to the right far enough to leave room for plaintiff's car to pass him on either side. No collision occurred and when defendant reached the Brush Creek road, he turned to the left. After making the turn defendant looked back, saw plaintiff's vehicle overturned in the ditch and returned to the scene of the accident. He estimated that plaintiff's vehicle came to rest about 50 to 100 feet east of the intersection. We quote a portion of defendant's testimony:

'Q. What did you do? A. As I went around the turn, my rear window was covered with mud, and I couldn't see through the rear window. As I went around the curve and seen there was no traffic that would hinder me from making a left turn, I started to get on the left side of the road, so if there was any traffic behind me it could go around to my right. As I got approximately half way across the yellow line, I could hear the splatter of water from the wheels on this other car, so I immediately pulled back so my left wheels were on the right hand side of the road, figuring it would give him enough room either way to pass me.'

The only error assigned by plaintiff is the giving of the following instruction:

'The defendant was only required in this case to keep to his right half of the highway when meeting oncoming traffic. Therefore, defendant was not negligent solely by the act of driving to the left of the center line. If plaintiff would require defendant to give way to the right or keep to his right half of the highway, he must give a clearly audible signal of his intention to overtake and pass. If you find that plaintiff failed to give a clearly audible signal of his intention to overtake and pass defendant, plaintiff was negligent. And if that negligence of plaintiff contributed in any degree, no matter how slight, to the accident here in question, the plaintiff cannot recover, and your verdict must be for the defendant.'

The foregoing instruction was clearly erroneous. The first sentence stating that defendant was only required to keep to the right half of the highway when meeting oncoming traffic directly contradicts the applicable statute which required defendant, before turning from the right side of the road, to see that such movement could be made in safety. The statute read as follows:

'ORS 483.126. (1) The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety. * * * Whenever the operation of any other vehicle may be affected by such movement he shall give a proper signal which is plainly visible to the driver of such other vehicle of the intention to make such movement.

'(2) The signal required by subsection (1) of this section shall be given either by means of the hand and arm or by an approved mechanical or electrical signal device. However, when a vehicle is so constructed or loaded as to prevent the hand and arm signal from being visible both to the front and rear, the signal shall be given by a device of a type approved by the Secretary of State.' (Italics supplied.)

The vehicles which may be affected by the movement of the vehicle starting, stopping or turning from a direct line include vehicles approaching from the rear. This is made clear by paragraph (2) which specifically provides that the signal to the driver of the vehicle affected by the movement must be visible both to the front and rear.

The term 'in safety' as used in the above section is not limited to the safety of the driver of the vehicle starting, stopping or turning from a direct line, nor to the safety of the drivers or occupants of oncoming cars, but includes the safety of all other people on the highway, including the drivers and occupants of vehicles approaching from the rear. See Miller v. Lowe, 220 Iowa 105, 261 N.W. 822.

This court also has held in a case involving facts somewhat similar to those in the case at bar that the protection of a statute similar to ORS 483.126 extends to a car approaching from the rear. In Valdin v. Holteen and Nordstrom, 199 Or. 134, 154, 260 P.2d 504, the plaintiff was proceeding along a straight stretch of highway and overtook the defendant who was proceeding on the highway ahead of him. As the two vehicles approached an intersecting road, plaintiff turned to the left side of the highway and was passing defendant's vehicle as they reached the intersection. Plaintiff contended that defendant caused the two vehicles to collide by attempting to make a left turn at the intersection without having given an appropriate signal. The applicable statute, now ORS 483.308, read as follows:

'* * * (3) The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction * * * at any intersection of highways, unless such movement can be made in safety.' (Italics supplied.)

In applying the above statute to the facts in that case, this court said:

'The same duty is imposed upon a driver of a motor vehicle to anticipate the lawful passing of vehicles from the rear as it is to anticipate traffic from the front and at intersections; especially is this true of the driver of a slow-moving vehicle.' [199 Or. 134, 260 P.2d 513.]

The defendant in this case admitted that the rear window of his vehicle was covered with mud and that he could not see through it.

This is not a case where the forward vehicle had been traveling on the left side of the highway for some time before the following vehicle overtook it. Defendant admits that as he turned from the right to the left side of the highway, plaintiff was in the act of passing. Under these circumstances it was clearly prejudicial for the trial court to tell the jury that 'in this case' defendant was only required to keep to the right half of the highway when meeting oncoming traffic and was not negligent merely because he drove to the left of the center line. A driver who cannot see to the rear and who, without warning, turns a slower moving vehicle to the left side of the highway directly into the path of a vehicle engaged in passing is clearly negligent and the jury should not have been instructed to the contrary.

Defendant argues that the instruction quoted above, which the trial court gave at his request, was a correct statement of the law and relies on the following cases: Weinstein...