Vroman v. Upp

• Decision Date: 22 March 1938
• Citation: 77 P.2d 432,158 Or. 597
• Parties: VROMAN <I>v.</I> UPP
• Court: Oregon Supreme Court

158 Or. 597

77 P.2d 432

VROMANv.

UPP

Supreme Court of Oregon.

Argued March 8, 1938.

Reversed March 22, 1938.

Automobiles — Right of way

1. The statute providing that a motorist approaching intersection shall give way to vehicles on right simultaneously approaching a given point imposes an absolute duty upon disfavored driver to look to his right before entering intersection, which duty is not measured by the degree of caution used by a person of ordinary care.

Automobiles — Right of way

2. Under statute imposing duty upon disfavored driver approaching intersection to look to right, the place where and the number of times when disfavored driver shall look to right and manner of his proceeding after so looking are to be determined by what an ordinarily prudent person would do under like circumstances.

Automobiles — Instructions — Ordinary care

3. An instruction that was susceptible of interpretation that defendant disfavored driver in approaching intersection was required to use only such care as person of ordinary care would use under like conditions was erroneous, since it was defendant's duty to look to his right for approaching automobiles before entering and attempting to cross intersection.

Automobiles — Instructions — Right of way

4. An instruction that if favored motorist approaching intersection though otherwise having right of way was going at unlawful rate of speed, right of way was forfeited in favor of disfavored motorist from the left was erroneous, since right of way is not transferred from the favored driver to the disfavored by favored driver's entering intersection at an unlawful rate of speed.

Automobiles — Right of way

5. When the favored driver enters an intersection at an unlawful rate of speed, the right of way is not transferred to the disfavored motorist, since under such circumstance there is no right of way and the rules of common law apply which impose on each motorist the duty to use due care to avoid collison which is determined by what a person of ordinary care would do under like circumstances.

Trial — Instructions

6. Where the substance of a requested instruction was embodied throughout instructions given, refusal of requested instruction was proper.

Automobiles — Instructions

7. An instruction that duty imposed upon disfavored driver when entering an intersection is somewhat similar to that exacted of a traveler as he approaches a railroad crossing should not be given and could only tend to confuse and mislead jury.

                  Rights and duties at intersection of arterial (or other
                favored) highway and nonfavored highway, note, 81 A.L.R. 185
                See, also, 5 Am. Jur. 668
                  42 C.J. Motor Vehicles, § 691
                

Department 2.

Appeal from Circuit Court, Jackson County.

H.D. NORTON, Judge.

Action by C.D. Vroman against Louis J. Upp for injuries sustained in an automobile collision. From a judgment for the defendant, plaintiff appeals.

REVERSED.

Porter J. Neff, of Medford (Neff & Frohnmayer, of Medford, on the brief), for appellant.

W.M. McAllister, of Medford (G.M. Roberts, of Medford, on the brief), for respondent.

BAILEY, J.

The plaintiff, C.D. Vroman, appeals from a judgment rendered on a verdict in favor of the defendant, Louis J. Upp. According to the undisputed facts, a collision occurred at the intersection of North Central avenue and Fourth street in the city of Medford, between an automobile driven by Judd Doty and one driven by the defendant. Doty was proceeding in a northerly direction on North Central avenue and after entering the said intersection his car was struck, at or near the left rear wheel, by the car of the defendant, who was proceeding in an easterly direction. The impact threw the Doty car out of its course and into and against the car driven by the plaintiff. At the time of the mishap the plaintiff was driving in a southerly direction on North Central avenue and, apprehensive of a collision between the defendant's and Doty's cars, had slowed his own car almost to a stop approximately 75 feet north of the intersection. The collision of the Doty car with plaintiff's car is alleged to have caused severe injuries to plaintiff and demolished his automobile. Action was brought by the plaintiff against Upp only.

In the complaint are set forth two causes of action, one for the injury suffered by the plaintiff and the other for damage to his automobile. After alleging in general terms that the injury to the plaintiff and the damage to his car were due solely to the negligence, carelessness and recklessness of the defendant in entering the intersection and colliding with the Doty automobile, the complaint specifies negligence on the part of the defendant in the following particulars:

"(1) In driving said Terraplane sedan upon said street at a speed greater than was reasonable and prudent, having due regard to the traffic, surface and width of said street and the hazard at said intersection and other conditions then existing, and at a speed in excess of 40 miles per hour.

"(2) In failing to keep a proper or any lookout for other traffic using said streets and particularly said Buick coupe [the Doty car] and the said DeSoto sedan [plaintiff's automobile].

"(3) In failing to yield the right of way to said Doty who was proceeding carefully and prudently at a lawful rate of speed and had entered said intersection before the defendant.

"(4) In failing, neglecting and refusing to keep his automobile under proper or any control so as to be able to stop or otherwise avoid running into said Doty's said Buick coupe.

"(5) In operating his said automobile upon said street carelessly and heedlessly in wilful and wanton disregard of the rights and safety of other persons and vehicles using said streets and particularly of the plaintiff and his automobile."

The defendant denies the allegations of negligence, avers that the collision was caused solely by the carelessness, recklessness and negligence of Doty, and charges to Doty the same acts of negligence that plaintiff attributes to the defendant. The allegations imputing negligence to Doty are denied by the reply.

There are no acts of negligence or contributory negligence charged to the plaintiff, for the apparent reason that he was in nowise connected with the collision between the defendant's automobile and Doty's.

Only three assignments of error are discussed in the appellant's brief. Two of these are based on the refusal of the court to give certain instructions requested by the plaintiff, and the third assignment of error is predicated on the exception taken to one of the instructions given by the court.

We shall first consider the last-mentioned assignment of error. The court, after instructing the jury that the law "provides that the drivers of motor vehicles when approaching a highway intersection shall look out for and give way — and give right of way to vehicles on the right simultaneously approaching a given point, whether such vehicle first entered and reached the intersection or not," continued its charge to the jury as follows:

"`Right of way' is defined as being the privilege of the immediate use of the highway. Now, under this definition, the law regarding who has the right of way in an intersection first provides that the drivers of motor vehicles...