Yates v. Stading

• Decision Date: 23 December 1959
• Citation: 219 Or. 464,347 P.2d 839
• Parties: Douglas Lee YATES, Respondent, v. Art STADING, Appellant.
• Court: Oregon Supreme Court

Page 839

347 P.2d 839

219 Or. 464

Douglas Lee YATES, Respondent, v. Art STADING, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 2, 1959.

Decided Dec. 23, 1959.

George P. Winslow, Tillamook, argued the cause for appellant. On the briefs were Winslow & Winslow, Tillamook.

D. E. Kaufman, Tillamook, argued the cause for respondent. On the brief were McMinimee & Kaufman, Tillamook.

Before McALLISTER, C. J., and ROSSMAN, PERRY, and REDDING, JJ.

PERRY, Justice.

This is an action for damages for personal injuries. The jury returned a verdict for the plaintiff and the defendant has appealed.

The accident from which plaintiff suffered injuries occurred on U. S. Highway 101 in front of a tavern known as Juno Inn, which is located approximately two miles north of Tillamook, Oregon. The highway at this point runs generally north and south, has but two lanes of travel, is approximately 22 feet in width, divided by a center line, and there was at the time of the accident an area on each side of the highway where customers of the inn were accustomed to and were permitted to park their automobiles. The inn was located approximately 50 feet to the west of the west edge of the traveled portion of the highway, and customers parking cars on the east side were required to cross the highway to enter the inn.

On the night of May 19, 1956, at approximately 10 o'clock p. m. the plaintiff, who had previously parked his automobile on the east side of the highway and entered the inn, walked out of the inn and started across the highway. The night was dark and the macadam pavement dry. The defendant, accompanied by some friends, was driving an automobile along the highway in a northerly direction, and at a point about due east of the front door of the inn his automobile struck the plaintiff while in defendant's west lane of travel, causing the injuries of which plaintiff complains.

The defendant assigns as error the trial court's refusal to grant his motion for a directed verdict and his motion for a judgment non obstante veredicto, on the grounds, first, that there was no substantial evidence of defendant's negligence which could have been the proximate cause of the occurrence, and, second, that plaintiff was guilty of contributory negligence as a matter of law.

In considering this motion of the defendant's it is the well-established rule of law in this jurisdiction that the courts must view the evidence and the reasonable inferences to be drawn therefrom in a light most favorable to the party obtaining the verdict.

We will first consider defendant's contention that plaintiff was guilty of contributory negligence as a matter of law.

The plaintiff's evidence discloses that along the highway from Tillamook to the place of the accident there are located several houses, motels and places of business, but the area can be classified neither as a residential or business area as defined by statute and, therefore, the designated or recommended speed in this area is 55 miles per hour. The highway coming from Tillamook also rises approximately 27 feet to cross over a viaduct. From the southern end of the viaduct along the highway to the place of the accident it is a distance of 783 feet, according to the measurements. From the north end of the viaduct the highway continues on a slight upgrade to the crest of a hill, which is approximately 328 feet from where the highway passes the front door of Juno Inn. From the viaduct to a point about 279 feet from the place where the accident occurred the road curves to the west. The plaintiff testified that before he started across the highway he looked in both directions, that there were no cars upon the highway in his immediate vicinity, but he did notice the glow of headlights coming up the hill from the south, or the direction of Tillamook; that he then started across the highway, looked again and the car was almost upon him; he jumped to reach safety off the west side of the traveled portion of the highway, but was struck by the defendant's automobile.

There is no testimony relating to where the upward glow of the lights of an automobile coming from the direction of Tillamook were first noticed by the plaintiff, but there is evidence they would be visible to a person in plaintiff's position somewhere along the approach to the crest of the hill, a distance of approximately 1300 feet.

It must be kept in mind that the plaintiff as a pedestrian was violating no law in crossing this highway in a rural area. In ORS 483.210(4) and (5) it is stated:

'(4) Every pedestrian crossing a roadway at any place other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway. Local authorities in their respective jurisdictions may by ordinance prohibit any pedestrian from crossing any street or highway at any place other than within a marked or unmarked crosswalk.

'(5) This section does not relieve the driver of a vehicle or a pedestrian from the duty to exercise due care.'

This section was construed by this court in Martin v. Harrison, 182 Or. 121, 137, 180 P.2d 119, 186 P.2d 534, 537, where we stated:

'The statutory provision hereinbefore quoted governing the crossing of a roadway at a point other than at a crosswalk is not a prohibition against crossing a roadway other than at a crosswalk. Genola v. Barnett, 14 Cal.2d 217, 93 P.2d 109. It imposes upon the pedestrian the duty of yielding the right of way, but does not relieve the driver of a vehicle of the duty to exercise due care.'

and we adopted the language of White v. Davis, 103 Cal.App. 531, 284 P. 1086, as a guide in determining the question of whether the conduct of a pedestrian who may rightfully cross a highway other than at a marked or unmarked crosswalk is a question of law for determination of the court or one of fact to be left to a jury. On page 139, Martin v. Harrison, 182 Or. 121, 186 P.2d 534, at page 538, supra, we quoted from White v. Davis, supra, as follows "* * * Where the injured party fails to look at all or looks straight ahead without glancing to either side, or is in a position where he cannot see, or, in other words, where he takes no precaution at all for his own safety, it is usually a question for the court. Where he looks but does not see an approaching automobile, or, seeing one, erroneously misjudges its speed or distance, or for some other reason assumes he could avoid injury to himself, the question is usually one of the jury."

See also Barnes v. Winkler, Or., 337 P.2d 816, and Lynch v. Clark, 183 Or. 431, 194 P.2d 416.

Under the facts of this case, we are of the opinion, since the plaintiff looked and saw the glow of the headlights of the defendant's automobile at some distance and then started across the highway, the question of whether or not he used that degree of care which a reasonably prudent person would have used under the same circumstances in attempting to cross the highway was a question for the jury.

The defendant's contention that there is no substantial evidence of his negligence is without merit. Actionable negligence rests upon a duty by one person to use due care toward another and the breach of that duty which as a proximate cause results in such person's injuries. Stout v. Madden & Williams, 208 Or. 294, 300 P.2d 461.

For instance, under the statute the question of whether the driver of an automobile is violating the law relative to speed is to be determined by whether or not there are circumstances existing which if ignored by the driver demonstrate to reasonable minds he is violating his duties in this respect to others who are rightfully using the highway and exercising due care. ORS 483.104; Burrows v. Nash, 199 Or. 114, 259 P.2d 106; Walker v. Penner, 190 Or. 542, 227 P.2d 316.

There is evidence from which the jury could find as a fact that defendant was driving at a speed of approximately 80 miles per hour when this accident occurred. Such speed by statute (ORS 483.104) is prima facie evidence of the violation of ORS 483.102, known as the basic rule. But even without this presumption, there is the testimony of the defendant himself to the effect that he knew of Juno Inn, and knew its patrons parked their cars on either side of the highway; that as he was approaching the inn his lights would not give him a clear view of the entire highway from any great distance to where the plaintiff was because of the curvature of the highway.

Under these circumstances and conditions it was for the jury to say whether or not defendant was operating his vehicle at a...