Berg v. Mengore

BRYSON, J. This is an action to recover damages for injuries sustained by plaintiff in an automobile accident. The jury returned a verdict in favor of defendant and plaintiff appeals. Plaintiff lived in Oregon City and defendant lived in Sweet Home, Oregon. They had been good friends for some nine years and remained so at the time of trial. They planned to go to a circus performance in Portland, and defendant was driving to Oregon City to meet plaintiff. Defendant’s car ran out of gasoline some four miles south of Oregon City on Highway 99E. Plaintiff picked defendant up and they went to the circus. About midnight, March 6, 1971, they returned to Oregon City, obtained some gasoline, drove to defendant’s car and started the motor. — 532 — Plaintiff drove north toward Oregon City and defendant followed, driving his car. Highway 99E is a four-lane highway with two lanes for northbound traffic and two lanes for southbound traffic. Plaintiff was proceeding in the right, outside lane at 45 to 50 miles per hour and defendant was proceeding in the left, or inside, lane at 60 to 65 miles per hour. The posted speed limit was 55 miles per hour.① At this point a “phantom” car heading south appeared in front of plaintiff’s and defendant’s automobiles in their northbound traffic lanes. On direct examination plaintiff testified: “Q * * * At a point then you noticed another vehicle. Is that right? “A Yes. As I rounded the curve I seen a car, reflection of the headlights coming on the pavement. As I rounded the curve this car was coming towards me cutting the corner and I immediately started to slow down. “A * * * I braked fairly hard but not enough to make it skid. am m m m m “A * * * I veered off to the right as far as I could and they had a concrete wall, retaining wall on the right-hand side of the road approximately one foot from the solid line. am m m m m “A * * * I realized that I was going to miss the [phantom] car. He was out of my lane. And Mr. Mengore’s car was proceeding around the — 533 — corner and just as I seen I was going to miss this car I looked in my rear view mirror to see and at that time I seen him [defendant] swerve to the right. And that is when he ran into me.” Both parties testified thát defendant’s car was 100 to 150 feet behind plaintiff’s car, but in the left lane for northbound traffic. Plaintiff testified: “Q Okay. Did the Defendant stop or turn or swerve to avoid hitting you? “A He swerved to the right to avoid hitting the other car, I presume. And that is when he ran in [sic] the back of me.” The plaintiff and the defendant were the only witnesses called regarding the facts pertaining to the accident, and both parties testified that defendant’s car collided with the rear of plaintiff’s car when the “phantom” car was opposite the plaintiff’s car. Defendant testified that as he saw the “phantom” car coming toward him in his lane of traffic he pulled to the right and slammed on his brakes. He testified: “Q And he was coming towards yon? “A Yes. “Q When yon saw this, what did you do? “A I just for an instant thought of the only thing I could do. Things flashed through my mind on what alternatives I had. And just more on instinct than anything else I pulled my wheel to the right and slammed on my brakes to avoid hitting this other vehicle. a* * # # * “A As I swerved my vehicle into the outside lane I observed Mr. Berg’s vehicle in the outside lane in front of me. I realized that I was going to collide with his vehicle.” — 534 — Plaintiff alleged that defendant was negligent in failing to maintain a proper lookout, in failing to have his vehicle under proper control, and in driving at an excessive speed. Defendant generally denied plaintiff’s allegations and affirmatively alleged that plaintiff was contributorily negligent in failing to maintain a proper lookout and to keep his vehicle under proper control and “in suddenly slowing or bringing his vehicle to a stop in the outside northbound lane of travel, when said movement could not be done with safety.” Defendant also affirmatively alleged that he was operating his vehicle in a northerly direction “in the inside lane for northbound travel * * * a short distance behind the vehicle of the plaintiff, * * * a third vehicle operated by a person unknown, while traveling southbound on Highway 99E swerved into both lanes designated for northbound travel and plaintiff suddenly brought his vehicle to a stop in the outside lane for northbound travel at a time when defendant was swerving from the inside northbound lane into the outside northbound lane in order to avoid the unknown vehicle.” Plaintiff first assigns as error the trial court’s denial of plaintiff’s motion to strike all of defendant’s allegations of contributory negligence in the affirmative answer of defendant. The motion was, in effect, a request that the court hold as a matter of law that plaintiff was not guilty of any of the negligence alleged in the answer. See Rough v. Lamb, 240 Or 240, 243, 401 P2d 10 (1965). Since Miller v. Harder, 240 Or 418, 421, 402 P2d 84 (1965), wherein we overruled in part our decision in Lehr v. Gresham Berry Growers et al, 231 Or 202, 372 P2d 488 (1961), we have generally held that these and similar issues of negli — 535 — gence and proximate cause are questions for the jury. In Miller, we stated: “* * * In these rear end collision cases whether or not a statutory rule such as following too closely, the giving of a signal, or speed has been violated in a given case should be left for the jury under proper instruction. This is equally true of the non-statutory duties. These considerations have caused us to reach the conclusion that we should follow the earlier cases cited in the dissenting opinion in the Lehr case and submit these cases to the jury.” 240 Or at 421. In the Lehr dissent we stated: “In cases involving rear-end collisions this court has held uniformly that the issues of negligence and proximate cause are for the jury. Britton v. Jackson et al, 226 Or 136, 359 P2d 429 (1961); Boyle v. Cottrell et al, 222 Or 565, 353 P2d 838 (1960); Johnson v. L. A.-Seattle Mtr. Exp., Inc., 222 Or 377, 352 P2d 1091 (1960); English v. Royce et al, 220 Or 402, 349 P2d 660 (1960); Rose v. Portland Traction Co., 219 Or 1, 341 P2d 125, 346 P2d 375 (1959); Denton v. Arnstein, 197 Or 28, 250 P2d 407 (1952). The only exception is Dormaier v. Jesse, 230 Or 194, 369 P2d 131 (1962), which contains a dictum to the effect that a defendant who drove into a blinding dust storm at approximately 45 miles per hour and collided with the rear of another vehicle was negligent as a matter of law.” 231 Or at 215. In Hess v. Larson, 259 Or 282, 286, 486 P2d 533 (1971), the plaintiff, as in the case at bar, contended “that there was no evidence at all as to her speed, lookout, or control, and that it was error to submit these allegations of contributory negligence to the jury.” We held, in Hess: “As a rule this court has refused to decide questions of negligence, especially in automobile — 536 — accident cases, as a matter of law. Where there is evidence upon which the jury can base a determination, questions of negligence and contributory negligence are for the jury and not for the court. [Citations omitted.] * * * We overruled the Lehr case for this reason in Miller v. Harder, 240 Or 418, 402 P2d 84 (1965) and have since refused to determine questions of negligence as a matter of law in all but the most exceptional accident cases. * * (Emphasis added.) 259 Or at 286-87. Stevenson v. Hole, 269 Or 530, 525 P2d 1015 (1974), wherein we upheld the trial court in granting a directed verdict in favor of plaintiff although defendant alleged contributory negligence on the part of plaintiff, was such an “exceptional accident case.” In Stevenson the defendant last noticed the plaintiff’s vehicle when it was 150 to 200 feet from the intersection where plaintiff was making- a left turn. Defendant next looked at plaintiff’s vehicle when he was 30 to 50 feet away. We stated, “and he could not have then avoided hitting- her because he was unable to stop soon enough. As a result, we can only conclude that if she failed to give any signal of her slowing or turning, such failure was not a cause of the accident. It would have happened anyway because defendant was not looking and would not have seen any signals soon enough to stop had they been given.” In the case at bar plaintiff knew that defendant’s vehicle was 100 to 150 feet behind him. He also knew, according to the testimony, that the “phantom vehicle” was proceeding diagonally in the direction of defendant’s automobile, in the inside lane. Notwithstanding these facts, plaintiff suddenly slowed his vehicle to approximately five miles per hour when he knew defendant, because of the “phantom vehicle,” was turning to the outside lane “to avoid hitting” the — 537 — “phantom vehicle.” From these facts the jury could have found that plaintiff was negligent in failing to properly control his car and in suddenly slowing his vehicle in the path of defendant’s vehicle when such movement could not be done with safety. Under the facts of this case, the court did not err in submitting the question of both plaintiff’s and defendant’s negligence to the jury under proper instructions. Plaintiff next assigns as error the trial court’s refusal to direct a verdict in favor of plaintiff as a matter of law because “defendant admitted negligence.” Plaintiff refers in this assignment to defendant’s testimony that he was driving between 60 and 65 miles per hour just prior to the accident. The posted speed at the place of the accident was 55 miles per hour. Under the particular facts of this case, the jury could have found that defendant had acted as a reasonably prudent person under the circumstances then and there existing although he may have been driving 5 to 10 miles per hour in excess of the posted speed limit. We find no error in this respect. Plaintiff finally assigns as error the trial court’s instructing the jury “in accordance with Oregon Uniform Jury-Instruction No. 10.10,” emergency instruction. Plaintiff argues that this instruction should not have been given because defendant placed himself “in a perilous position” by driving at an excessive speed on an unfamiliar highway. We find no error in this respect. Plaintiff completely ignores the “phantom” southbound vehicle in both plaintiff’s and defendant’s lanes of traffic. The instruction was given so that it applied to both plaintiff and defendant. Whether defendant was responsible for the emer — 538 — gency was for the jury to decide under all the facts of the case. Finding no error, the judgment is affirmed. Affirmed. Footnotes [①] ORS 18.470 (comparative negligence) and the amendments to ORS 483.102 (basic rule) and ORS 483.126 (stopping), adopted by the legislature in 1971, were not effective at the time of this accident.