Gray v. Lahl

TONGUE, J. This is an action for damages for personal injuries resulting from a rear-end automobile collision. Plaintiff’s complaint alleged that defendants were negligent with respect to control, as well as lookout and speed. Defendants’ answer was a general denial. At the conclusion of the trial plaintiff moved for a directed verdict on the issue of liability. That motion was denied. The jury returned a verdict in favor of defendants. Plaintiff appeals from the judgment on that verdict. Plaintiff contends that this is one of those "rare cases” in which plaintiff was entitled to a directed verdict on the issue of liability because the defendant driver admitted that the brakes of the truck were "spongy” at a point two blocks before "rear-ending” plaintiff’s car and that he was then unable to stop the truck; that having thus admitted that the brakes of the truck were defective, defendants had the burden to show that he nevertheless acted reasonably in driving a truck with defective brakes in that the failure of the brakes was sudden, unexpected and without prior warning and that, having failed to do so, it follows that defendants were negligent as a matter of law. Because this is an appeal from the denial of a motion by a plaintiff for a directed verdict, we must accept the evidence most favorable to the defendants. It appears from the testimony of defendant Siler on direct examination that defendants Lahl were engaged in the operation of a "sanitary service” in Gresham. On the morning of the accident defendant Siler, an employee, was required to drive a truck from the "station” to the dump. He "got in the truck, checked the brakes, lights * * * the load, the tires and * * * proceeded to the dump.” In the course of proceeding to the dump he drove south on 82nd Avenue in Portland, traveling on the "inside lane.” As defendant Siler approached the intersection of 82nd Avenue and Sunnyside Road, the light turned — 114 — yellow. There were two cars ahead of him. He was then some 350 feet from the point of impact. He testified that "I applied my brakes and they were spongy. In other words, they wouldn’t stop. * * * I was looking for a place to escape.” Defendant Siler then looked in his rearview mirror "because I was about to go into the [outside] lane” and saw plaintiff’s car coming up behind him. He then "tried my emergency brake and shifted into first gear” to "slow me as fast as I could.” He then looked in his rearview mirror again and could no longer see plaintiff’s car, but testified that "All of a sudden he reappeared in front of me, * * * maybe three or four feet in front of me. I turned into that lane and bumped him.” At that time the truck was going about four or five miles an hour and plaintiff’s car was going approximately three to four miles per hour, according to defendant Siler. Plaintiff’s attorney did not cross-examine. In Barnum v. Williams, 264 Or 71, 78-79, 504 P2d 122 (1972), we stated the following rule: "We consider the present state of the law to be that if a party is in violation of a motor vehicle statute, such a party is negligent as a matter of law unless such party introduces evidence from which the trier of the fact could find that the party was acting as a reasonably prudent person under the circumstances. * * * "Another way of stating this is that the violation of a motor vehicle statute creates a presumption of negligence. When the evidence establishes that a party has violated a motor vehicle statute, such a party has the burden of producing evidence that, nevertheless, he was acting reasonably. Without such evidence the party is negligent as a matter of law. Raz v. Mills, 231 Or 220, 226-227, 372 P2d 955 (1962). "If the party having such burden produces no evidence of reasonable conduct or the court finds the evidence produced is insufficient to prove reasonable conduct, the court must find the party negligent as a matter of law. If the party produces evidence which the court determines raises a question of fact whether the — 115 — party acted reasonably, despite violation of the statute, then, the question of the party’s negligence is for the jury.” In Weitzel v. Wingard, 274 Or 185, 546 P2d 121 (1976), this court applied the rules as stated in Barnum in a case involving the operation of a defective motor vehicle, as in this case. In Weitzel defendant testified that the accident occurred when "something just went out from underneath [his] car” as he was driving "no more than 30 miles an hour”; that what "broke loose” was "the rear end of the car someplace”; that the car then went out of control; that defendant was unable to either steer the car or "to slow it down or stop it”; that after "things broke loose, things started dragging,” and he "couldn’t get any response from [the brakes] * * *.” On these facts a majority of this court held in Weitzel that the trial court did not err in denying plaintiff’s motion for a directed verdict on the issue of liability. In so holding, however, and after quoting (at 185) with approval from its previous decision in Barnum, in which defendant’s car had gone "over the center line,” striking another vehicle, this court said (at 186) that: "We compared the situation in Barnumto a presumption of negligence which becomes conclusive in the absence of a legitimate excuse for the statutory violation, * * *. "The presumption becomes conclusive, in the absence of explanation, because the violation of a statute is involved. "In the present case defendant gave as an excuse for his being on the wrong side of the road the defective condition of his vehicle. This is an adequate excuse only if he was not at fault for its defective condition. * * *” This court then (at 184-85) distinguished between the operation of a vehicle "the condition of which was in violation of a statute” from what the court described as a "non-statutory defect.” The court said (at 190) that if the defendant had been "operating a vehicle the — 116 — condition of which was in violation of a statute,” there would have been "a presumption of negligence upon defendant for the defective condition of his vehicle which becomes conclusive in the absence of his testimony that he took due care of it.” This court went on to hold, however, that because the defect of the vehicle in that case was a "non-statutory defect” (i.e., "something” "broke loose” from the rear end of the car and "things started dragging,” causing it to go "out of control”) no such conclusive presumption arose. Unlike Weitzel, this case does not involve a "non-statutory defect.” Instead, this case involves the operation of a loaded truck with defective brakes. ORS 483.444 provides: "(1) Every motor vehicle other than a motorcycle when operated upon a highway shall be equipped with brakes adequate to control the movememt of and to stop and to hold such vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels. ‡ ‡ ‡ "(4) All brakes shall be maintained in good working order * * Defendant Siler admitted that the brakes of the truck were not "adequate to control the movement of and to stop” that vehicle, as required by the statute. It follows from this admitted statutory violation, as we said in Weitzel, that there was "a presumption of negligence upon defendant[s] for the defective condition of [their] vehicle which [became] conclusive in the absence of testimony that [they] took due care of it.” In other words, we hold that a defendant who denies that he was negligent in failing to keep his vehicle under control, but admits operating his vehicle with defective brakes in violation of the statute, has the burden — 117 — to offer testimony which, if believed, is sufficient to show that he was not negligent. In order to do so, defendant must show a "legitimate excuse” for such a statutory violation, as by testimony that the failure of the brakes was sudden, unexpected and without previous warning. There was no such testimony in this case. Defendant Siler testified that the brakes were "spongy” and "wouldn’t stop” when he applied them some 350 feet from the point of impact. It is true that he also testified that he "checked” the brakes before leaving the "station” in Gresham. Even if it can be inferred that the brakes were not "spongy” at that time, there was no testimony that the brakes were not "spongy,” but operated properly, on subsequent applications of the brakes between the time of leaving the "station” in Gresham and the time of the accident in Portland. On this state of the record, we hold that defendants failed to offer testimony from which a jury could properly find that when the brakes failed to operate properly at the time of the accident such a failure was unexpected and without previous warning. In short, defendants failed to offer any "legitimate excuse” for their admitted operation of a loaded truck with defective brakes, in violation of ORS 483.444.1 It follows that this is a case in which, as stated in Weitzel (at 190): "The presumption [of defendant’s negligence] becomes conclusive, in the absence of explanation, because the violation of a statute is involved.” There being no claim of contributory negligence, it also follows that the trial court erred in denying — 118 — plaintiffs motion for a directed verdict on the issue of liability.2 Reversed and remanded. Footnotes [1] The dissent also points out that plaintiffs complaint alleged only "speed, lookout and control” and did not allege that the brakes were defective and that plaintiff also did not cross-examine defendant Siler. Plaintiff was under no obligation to do either. When the defendant sought to excuse his lack of control upon the ground that his brakes were defective it was then his burden to come forward with evidence that the failure of his brakes was sudden, unexpected and without prior warning. [2] Defendants rely primarily upon our decision in Pitcher v. Leathers, 270 Or 666, 529 P2d 381 (1974), and state that "the issues seem to be the same” as those in that case and that to rule in favor of plaintiff "this court will necessarily have to reverse its holding in Pitcher v. Leathers.” In Pitcher, however, no vehicle defect was involved, much less the driving of a vehicle with defective brakes in violation of a statute, as in this case.