Wilson v. Bittner

• Decision Date: 16 April 1929
• Citation: Wilson v. Bittner, 129 Or. 122, 276 P. 268 (Or. 1929)
• Parties: WILSON v. BITTNER.
• Court: Oregon Supreme Court

276 P. 268

129 Or. 122

WILSON v. BITTNER.

Supreme Court of Oregon

April 16, 1929

Department 1.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by E. D. Wilson, against Emil Bittner.Judgment for plaintiff, and defendant appeals.Affirmed.

C.J. Young, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for appellant.

Paul R Harris, of Portland (Davis & Harris, of Portland, and W. J Cooper, of Gresham, on the brief), for respondent.

RAND J.

This is an action for damages for personal injuries.The cause was tried by the court without a jury, and plaintiff had judgment for $825, from which defendant has appealed.It appears from the evidence that plaintiff, while operating a motorcycle on a public highway, met a truck owned and operated by defendant and proceeding in an opposite direction, and, in passing the same, caught his left hand between one of the handlebars of the motorcycle and a projection on defendant's truck causing one of his fingers to be crushed and permanently injuring his hand.At that point there was a cement pavement 9 feet wide in the middle of the road and a graveled strip 3 feet wide on each side of the pavement, on the outer edge of which, on the plaintiff's right-hand side, was a depression or ditch.The evidence tended to show that the surface of the graveled strip was composed of loose gravel and rock, rendering it hazardous for use by motorcycles while being operated at any ordinary speed.Plaintiff at the time was traveling from 20 to 25 miles per hour, and defendant 12 to 15 miles per hour.The parties were within plain view of each other for a distance of about 300 yards, the truck proceeding slightly up grade and plaintiff slightly down grade.The truck in its widest part was 6 feet and the spread of the handlebars of the motorcycle was 3 feet.

Defendant admitted that he was driving his truck in the center of the pavement, but claimed that he expected plaintiff, is passing, to turn out onto the graveled portion of the highway, when, upon observing that plaintiff was not turning out, he commenced to turn to the right, and at the time of the impact his front right wheel had left the pavement.According to plaintiff's testimony, he was riding on the extreme right side of the pavement and expected defendant to give him sufficient space on the pavement to pass, and, upon reaching a distance of about 15 feet from the truck and seeing that the defendant was not going to do so, he pulled out onto the graveled portion of the highway to the edge of the road, and, in passing the rear end of the truck, caught his hand between the handle bars and a projection on the truck.

The specific negligence charged in the complaint was that defendant failed and refused to give half or any part of the road, as required by section 2, subd. 1, c. 371, L. 1921, which, as amended by chapter 165, L. 1925, and in force at the time of the accident, provided: "Vehicles proceeding in the opposite directions shall pass to the right, giving one-half of the road to each."

The court found that the defendant was negligent, that plaintiff was not guilty of contributory negligence, and that defendant's negligence was the sole cause of the injury.This finding, by force of the statute is deemed a verdict, and is conclusive upon appeal, if there is any evidence to support it.In approaching the truck, plaintiff had a right to rely upon defendant's observance of the law of the road, and was not bound to anticipate his failure to do so until it was obvious to him that defendant would not turn out and permit him to proceed on the pavement, and, when...