Kiddle v. Schnitzer

BAILEY, J. The plaintiff, Clyde L. Kiddle, instituted this action against S. Schnitzer and others to recover damages for personal injuries suffered by him as the result of a collision between an automobile operated by the plaintiff and a truck and trailer operated by and on behalf of the defendants. Prom a judgment entered on a verdict in favor of the defendants the plaintiff appeals. The accident occurred on November 6, 1938, about five-thirty o’clock in the evening, approximately six miles west of Pendleton on a part of IT. S. highway No. 30 commonly referred to as the Pendleton cut-off. This part of the highway has an oiled surface twenty feet wide, with graded shoulders on each side three to four feet wide. The truck and trailer and the car operated by the plaintiff were proceeding in a westerly direction. The collision took place on straight road over a “nearly level” stretch of land with possibly “a little incline or grade,” as the plaintiff described it, approximately six hundred feet westerly from the crest of a hill over which the highway passes. The trailer was loaded with steel rails and pipes, which extended some five or six feet beyond the end of the trailer. There was evidence that there were two clearance, lights and a tail-light on the truck and a rear reflector on the trailer. The accident happened *320 about one hour after sunset, in clear weather with visibility good and the pavement dry. The plaintiff was driving at what he termed his usual rate of about forty-five miles an hour. The truck was slowing down to five or ten miles per hour, preparatory to stopping in response to a signal from a state police officer. The plaintiff’s car crashed into the rear end of the trailer. Both vehicles were on the right side of the highway and there was no other vehicle or obstruction on the left side. The tires of the plaintiff’s car made deep skid marks on the pavement for a distance of eighty feet up to the point of impact. The marks were parallel with the yellow middle line of the highway. The front end of the car was completely wrecked and the plaintiff suffered serious bodily injuries. The complaint alleges that the defendants were negligent in failing to have the statutory lighting equipment on the rear of the truck and trailer and on the end of the overhanging load. The answer charges the plaintiff with contributory negligence in five particulars, namely: 1. Excessive speed, more than sixty miles per hour. 2. .Failing to have his automobile under control. 3. Failing to keep a proper lookout. 4. Failing to slow down and stop his automobile or swerve the same to the left to avoid striking the truck. 5. Driving his automobile while equipped with defective and insufficient lights. One of the assignments of error here urged is the failure of the court to withdraw from the consideration of the jury the specification of contributory negligence in regard to defective and insufficient lights on the plaintiff’s car. The plaintiff asserts that there is no evidence in the record to support this allegation of contributory negligence. *321 In. describing tbe accident, tbe plaintiff testified on direct examination as follows: “Q. Now, will yon relate to the jury just what happened after yon came np over the hill? A. I came np over the hill and traveled for a short distance. This truck loomed up ahead of me and I applied my brakes.” He further stated that both the front lights of his car were burning “bright” and that he did not observe any lights or reflectors on the truck or trailer. On cross-examination the plaintiff thus testified: “Q. What were you doing as you came up over the crest of the hill? Was there anything to divert your attention? A. No, sir. “Q. About how far were you away from the truck when you saw it, Mr. Kiddle? A. I couldn’t estimate it. It loomed up ahead of me and I slammed the brakes on. “Q. Slammed on your brakes, you think, immediately; is that right? You slammed on your brakes when you saw it? A. Yes, sir, as quick as I saw the truck. “Q. Just as quick as you saw the truck? And then you say you lost consciousness? A. With the impact, when I hit the truck. Q. When you hit the truck. But from the time that you observed it, first observed it, you noticed the overhang of this load? A. Yes, sir. Q. All of those matters? A. Yes, sir, just before I hit the truck I noticed that. “ Q. Do you have any idea what the distance ahead is of your lights, your lights’ ability to illuminate the road; that is, how far ahead the headlights of your car throw their beams ? A. No, I haven’t. A Chevrolet car and I suppose it was about like any other Chevrolet car. I know the lights were good and hadn’t caused any trouble. “Q. Did you make any attempt to turn out at all, Mr. Kiddle? A. I didn’t have time.” *322 The plaintiff, at the time of the accident, was required to have head-lamps of his motor vehicle so “constructed, arranged, and adjusted that” they would at all times, under normal atmospheric conditions and on a level road, “produce a driving light sufficient to render clearly discernible a person two hundred” feet ahead: § 55-2603, Oregon Code 1935 Supplement. In this connection, the plaintiff testified that the truck “loomed up” ahead of him and that “as quick as” he saw it he “slammed on” his brakes. He did not have time after seeing the truck to swerve his car, to avoid striking it. There was nothing, he testified, that diverted his attention from the highway in front of his car. There was no direct evidence as to the distance ahead of the plaintiff’s car that the headlights thereof would make a man clearly discernible to the driver of the car, The plaintiff stated that he had no such knowledge. He testified also that he could not estimate how far the truck was away from him when he first saw it. The record shows the distance he traveled after he applied his brakes, and the condition of his car gives evidence of the force of the impact. With the plaintiff’s car maintaining a speed of forty-five miles an hour and the truck proceeding at only five miles an hour at the time of the collision, the plaintiff’s car must have traveled in excess of two hundred twenty-five feet after first coming within two hundred feet of the truck and before overtaking it. However, the speed of both vehicles was being decreased, that of the car probably more rapidly than that of the truck, which is mentioned as five to ten •miles an hour at the time of the collision; and the distance that the plaintiff’s car would travel before over *323 taking the truck was accordingly greater than two hundred twenty-five feet. The question raised by the plaintiff’s assignment of error hereinabove mentioned is whether the jury could, from all the facts before it, draw the inference that the plaintiff’s car was “equipped with defective and insufficient lights”. Whether the plaintiff was guilty of contributory negligence was a question for the determination of the jury. In arriving at its conclusion, the jury might have been of the opinion that the plaintiff was driving not in excess of forty-five miles an hour, as testified to by him; that his attention had not been diverted from the highway; that he was keeping a lookout; and yet that his failure to see the truck and trailer in time to avoid striking the latter was due, in part at least, to his own negligence. The plaintiff testified that he did not see the truck in time to avoid a collision. Whether his failure or inability to stop was due to excessive speed of his car. inattention on his part, poor visibility, a combination of those factors, or some other cause, was a question for the jury. The visibility possible to a driver at night is largely dependent upon the sufficiency of the headlights on his car to make discernible objects on the roadway. There is no direct evidence that the plaintiff actually did see or could have seen the truck at a distance of two hundred feet. From the facts proved, the jurors might well have reasoned, out of common knowledge and their own experience, that defective or insufficient headlights on his ear prevented the plaintiff from seeing the truck sooner than he did: §§ 2-402 and 2-404 O. C. L. A. In order to reach this conclusion, it was not necessary to base inference on inference. No *324 error was committed by the trial court in refusing to withdraw from the jury the question of the condition or sufficiency of the headlights on the plaintiff’s automobile. In Barry v. Tyler, 171 Va. 381, 199. S. E. 496, the plaintiff’s intestate was a guest in a car which struck the rear end of a parked truck. The driver of the car testified that he was traveling between thirty and thirty-five miles an hour, on the right' side of the road, “and all of a sudden a big blur appeared”, and that he turned to the left .but could not avoid striking the truck. He further testified that he was looking ahead but saw no warning light. No evidence was introduced on behalf of the defendant. The court charged the jury that the law required motor vehicle lights to be capable of revealing á person or object two hundred feet ahead, and that if it found that the car was not so equipped or that the lights were not burning, and that such failure was the sole and proximate cause of the accident, it should return a verdict for the defendant. The jury found in favor • of the defendant. With reference to that instruction the appellate court said: • “Tyler testifies that though he was looking, he,did not see the truck. Thus the lack of visibility is offered as a fact. From that fact, natural inferences may be drawn. A reasonable inference is that the headlights of the Ford car did not come up to the requirements of the statute. “Inferences drawn from, physical facts may be as strong as direct evidence. Such inferences amount to circumstantial evidence. Facts may be proven by circumstantial evidence as well as by direct evidence. An instruction can be based' on • inferential or circumstantial evidence.” . ■ *325 Error is assigned on the refusal of the circuit court to give a requested instruction with reference to an emergency, with which the plaintiff now contends he was confronted when he first saw the truck and trailer in front of his car. It is a well-established rule that an automobile driver who, by the negligence of another and not by his own negligence, is suddenly confronted with an emergency and is compelled to act instantly to avoid injury or damage, is not guilty of negligence if he makes such a choice of action as might be made by a person of ordinary prudence, under like circumstances, even though his decision proves not to have been the wisest possible: 5 Am. Jur., Automobiles, §171, page 600. When the emergency has arisen through the driver’s own negligence, he can not rely upon it to excuse his consequent action: Dickson v. King, 151 Or. 512, 49 P. (2d) 367; Hornby v. Wiper, 155 Or. 203, 63 P. (2d) 204; 5 Am. Jur., supra. In 5 Am. Jur., at page 601, it is said: “The sudden emergency doctrine is not an exception to the general rule; the question is whether the defendant acted as an ordinarily prudent and. careful person would have done under the same circumstances, and the emergency is one of the circumstances contemplated by the rule. If the defendant’s course was one that an ordinarily prudent and careful driver put in such a position might have taken, he is relieved from liability; otherwise he is not.” The trial judge, after explaining the issues in the case, further instructed the jury as follows: “Now, negligence has been defined and recognized as the doing of an act that an ordinarily prudent person would not have done, or the failure to do such an act that an ordinarily prudent person would have *326 done under the same or like circumstances. In other words, it is a measure of conduct and that measure is not the highest degree of care nor is it satisfied by the lowest degree of care. It is that care which the ordinary person would exercise under the same or similar circumstances.” The foregoing instruction covered, in a general way, the degree of care required under all circumstances, which would include an emergency. The instruction did not, however, specifically discuss emergency or particularize as to the degree of care to be expected in such case. As was said in Nordlund v. Lewis & Clark Ry. Co., 141 Or. 83, 92, 15 P. (2d) 980: “The judge who presides over the trial and sees the manner in which the issues develop, whether they are mentioned in the pleadings or not, is best able to know what instructions are needed by the jury to produce a verdict in harmony with the law, and thus much must be left to his direction.” In Murphy v. Read, 157 Or. 487, 72 P. (2d) 935, error was assigned on the refusal of the court to give a requested instruction on unavoidable accident. In holding that no error was committed in that respect, this court stated that such an instruction would have been merely a repetition of the general charge of negligence. There is considerable doubt in the case now before us whether there was an emergency not due to the plaintiff’s own negligence. The judge who presided over the trial, in a written opinion denying the motion for a new trial, with reference to his refusal to give the plaintiff’s requested instruction, observed: “After a review of the record in this case, the entire transaction, it seems to the court, was one which does not make applicable the question of an emergency. *327 As a matter of fact, all these automobile accidents might be deemed emergencies. Very few are premeditated and these are cases of wilful and intentional wrong, so that the court does not feel that the question of emergency was to be emphasized in this particular transaction. The general rule of ordinary care was applied and the jury was instructed that the degree of care was commensurate with the dangers reasonably to be apprehended.” It is within the sound discretion of the trial judge whether to enlarge upon any particular subject covered by general instructions. There are instances in which refusal to give a specific instruction on the emergency rule would constitute reversible error. In the case before us, although it possibly would not have been erroneous to give an instruction on emergency, nevertheless the failure to give such an instruction, in the light of all the facts in the case, can not be said to be an abuse of discretion. To hold in this instance that the circuit court should have instructed the jury with particular reference to the emergency doctrine would establish a precedent requiring a similar instruction to be given, if requested, in practically every case involving a motor vehicle accident. We have carefully examined the entire charge given by the court to the jury and have found nothing therein which overemphasizes contributory negligence. No error appears in the record, and the judgment appealed from is accordingly affirmed.