*1 Argued 14, 1972 June affirmed December Appellant, Respondent. BARNUM, WILLIAMS, n
73 *2 argued Ierulli,
Vincent G. Portland, cause and appellant. filed a for brief
Ridgway Foley, argued K. Jr., Portland, the cause respondent. for With him on the brief were Souther, Spaulding, Kinsey, Williamson & Sehwabe Gordon Moore, Portland.
Before O’Connell, Justice, Chief and McAllister, and Bryson, Justices. Denecke, Holman, Howell DENECKE, J. plaintiff brought damages this action for personal injuries allegedly
for incurred when the motorcycle driving he was collided with the car the driving. *3 defendant was The found for the defend- plaintiff ant appeals, contending and the the trial gave court two erroneous instructions. rainy day
The collision occurred on a on Vista plaintiff going uphill in Avenue, Portland. The rounding extremely sharp and an curve to his left. The coming defendant was downhill. Vista Avenue di- is by yellow vided into two lanes a line. The line is much closer to the on jury curb the defendant’s side. The impact could have found that the occurred on or near plaintiff’s the or on the line side of the line. The could have also found that when the defendant ob- plaintiff, plaintiff riding served the the leaning and turn; center line into the the defendant narrow lane was near the the center line and became they might apprehensive that collide; the defendant applied plaintiff’s and slid Ms brakes into lane and (cid:127)with, plaintiff. collided jury: The court trial instructed negligence, “In addition to common law there statutory negligence, is consists of the also which safety protection violation of a law for which, or requires of acts or conduct or for- others, certain your I to call bids certain acts or conduct. Were any attention to of such law is law, such violation negligence exception: with this If itself; you attending circumstances, find under all the that, complied with a statute cannot should not be or by person exercising care for the reasonable you safety I instruct others, of himself and then strictly you may that the statute should find that the failure to observe not be excused and should negligence.” deemed originates problem posed the instruction have with court and others had
in the difficulties this statutory negligence per application of se doctrine. repeatedly of a law held that violation
We have negligence contributory negligence or is or ordinance exception per to the This has been i.e., se. itself, upon negligent depends is one whether usual rule that reasonably person. prudent aas whether one acted question per negligence se doctrine Under per reasonably prudent actor acted whether only question irrelevant; is, did the actor son the statute? violate to the doctrine
Despite adherence stated our per se, we could a statute deeply-rooted submerge tradition that fault our *4 liability tort. In defective brake of a basis opinion of that the “We are now the stated: case, we to eliminate the intended motor code Avas vehicle McConnell of torts.” from the Iuav element of fault Herron, P2d 726 (1965). 486, 491, Or Ieav of of the tort in the development
Early violation the doctrine motor vehicles Ave stated is negligence statute a motor vehicle operation Ave however, engrafted At the same time, se. per Olson, this doctrine. Marshall v. of fault into principle In the Marshall 511-513, 202 P 502, 102 Or have found the defendant ease the could ordinance. The court ob turned in violation of a city “* * * unreasonable to main served: Avould be [I]t under tain man Avould be such negligent that a culpably to the or to right if he turned either circumstances, of collision, the left to aAmid imminent Avhen danger such and only by action, could be peril escaped * * one *.” else: that, injury any Avithout too, Or at 512-513. Avas carried into
This line of cases in reasoning Avhieh of the drivers Avent onto the “Avrong” one side Wooge, Gum, Adm. v. of the road. such case is One P2d 119 in Avhieh Ave said: statute is not “Furthermore, considered violated Avhen the driver, acting instances reasonably turns to the left avoid a collision prudent person, vehicle traveling Avith an its approaching Avrong ** *.” lane. Most, of our on all, but not decisions this issue Avith situation in Avhieh the driver have dealt sud- vehicle, with a Avas faced pedestrian, or some denly his side of the road on other obstacle reacted side” the road “wrong into the in turning In such cases we have approved statute. in- that violation to the effect structions *5 requiring of the road is to drive on Ms own side one negligent negligence per the driver is not se; however, making emergency not own if of his he is faced with turning the road acts as a and in onto the left side of reasonably prudent person acted when would have emergency. Harrison v. Avedo- with similar faced (1968). vech, 584, 588-590, 249 Or emergency caused someone or The sudden something factor which most driver’s lane is the “wrong commonly side” makes a swerve to person. reasonably prudent rule, The of a road the act logically cannot be confined has not been however, solely to such circumstances. ‹ change emergency presence does of an
The remains reasonable the standard care; the standard party If a acts unreason circumstances. care under the emergency, negligent; ably if he he face of an in the emergency negligent. reasonably, The he is not acts judging simply consider in the circumstances to one of reasonably under the cir the actor behaved whether cumstances. under all of the reasonable care
“The rule of
emergencies,
applies
the emer-
even
circumstances
gency being
to be considered.”
of the circumstances
one
Frangos
In some of
trary
driver did
onto
statute the
not turn
a traffic
response
emergency
“wrong
to an
but went
side”
“wrong
other reasons.
side” for
onto the
‹ The
may
emergency
as an
classified
case
case
suddenly
plaintiff
confronted with
was
defendant
because
leaning
riding
toward the defendant and
line
center
judgment.
for considered
time
without
We
defendant
reacted
broadly.
prefer, however,
treat
it more
upon
the road is
side of
not
offending
per
wrong
driver
on the
se if
went
* *
through
side
at 306-307.
no fault
his own.
255 Or
Highland Trucking,
Inc.,
In Mennis v.
(1972),
with
driving
log
of the
Avas on
side
road Avhen he
truck and
plaintiff’s
The defendant Avas
Avith
on the
plaintiff.
collided
the road Avas
because
narroAV and
side”
“Avrong
held We
off on the defendant’s
side.
abruptly dropped
matter of laAv
was
as a
negligent
the defendant
not
In
Avas
submitted to the
properly
jury.
and this issue
“Moreover,
stated:
we have
Ave
held that
holding,
so
half of
right
to drive
the road is not
failure
if
se
the driver
acting
reason-
per
under the circumstances.”
person
ably prudent
violations
excusing statutory
Because
solely
Ave
emergency
illogical,
Avonld
instances
be con-
and
to circumvent
tempted
rule.
stantly urged
We
as the
to consider
fault
basis for
continue
imposing
extremely
litigation.
liability
are
in automobile
Courts
reasonably
party
has acted
to
loath
find a
who
to
merely
negligent
negligent
contributorily
because
or
contrary
party
of this
Because
acted
to a statute.
being
constantly
ingrained
the courts are
reaction
statutory negligence
exceptions
to
asked
create
doing
per
avoid the
are
so to
rule and the courts
se
negligence per
seeming
se doctrine.
harshness
problem
experience
extends
cases
with this
Our
driving
statutory
involving
than
on
other
violations
of the road.
side
On jury. However, to the the court’s the issue to submit imposed identical to that in the a in such case task judicially set standard of of a conduct administration also whether must decide to submit the court in which find or a matter issue crossing example, in railroad cases this For law. judicial standard a on a train a has set court warning presence adequate crossing of its itself duty provide warning, further no has railroad flagman. have alleviated the We sometimes such as by creating rule, however, of that effects harsh reasonably prudent might exception if driver crossing, train then, the rail- observe *8 duty pres- road does have a warn the driver of the Spokane, ence Ry. of the train. Finn v. P. & S. Co., Or P2d 354 In such cases the court must decide whether jury there is evidence from which a could find that a reasonably prudent person might not observe the train provided warning. unless the railroad some jury The in this case could have found that the reasonably prudent person acted as. a al defendant though the, may proceeded his vehicle have over di was, viding For line.' this reason the instruction erroneous in substance. › plaintiff also'excepted to the' trial coiirt’s pro- “Then another'statute of this State instruction: proceeding vides that drivers of opposite vehicles pass right, directions each giv- shall other to the each ing; the other at least one half of to. the main traveled portion roadway nearly possible.” of the ás (cid:127) this, applicable instruction was not case . '.The dividing because there was a line the street into lanes plaintiff’s and the lane was wider than the defendant’s! giving inapplicable hold, Wé however, this . \ prejudicial was' not error. Immediately instruction pnQr quoted instruction, giving trial the' correctly court instructed requires the statute fhat when a street into lanes the driver divided required to drive his own lane. Defendant’s counsel argument never contended in his to the that his dividing entitled statute to cross the client line highway. and use one-half of the Affirmed. J., concurs the result.
Bryson, › No objection made to form the instruction and upon pass therefore, we, do not that issue. dissenting. J., McALLISTER, majority that under Tlie concludes *9 opera- the violation of a motor vehicle state of our law, disputable presumption of tional statute creates a shoiving may negligence rebutted which acting violating statute, was reason- the the actor, my prior ably. disagree. opinion, our cases have In I negligence per se, of stricter doctrine established the exceptions. only limited with (1922) P 736 502, 202 Olson,
In v. Marshall “emergency” exception adopted the to first the court operational of an statute is rule that violation the negligence per se: “* * * negligence per [rule se] of this But degree qualification, of taken with some
must be necessary emergency, it is in an so if under all that, an to circumstances, accident, to avoid the turn prescribes, or than ordinance law it otherwise upon negligence, of could not be counted evidence qualification.can or as itself. Before this upon, appear it of must course from be relied perilous emergency and a sudden evidence that sanctioning, judgment in of reason- doing ably prudent men, the act which under would be technical the circumstances breach of * * *” regulations. municipal atOr 512. LaVigne Traction Co., Portland In Or (1946) held the court that the defendant reasonably prudent person emergency in an acted situation: * * danger suddenly faced with He from obviously coming out automobile, of control and an * * * wrong its side of the him on street.
toward He only escape open, avenue took there no accident but for the been have unforesee- would LaVigne suddenly car, which able action changed its to course, went back side of the road slackening from which it had come, without and, its speed, collided with the bus. hardly necessary “It seems to add that the the (§115-327, O.C.L.A.), requires statute operation which right-hand of vehicles on the side of the highway, application has no in the circumstances * * of this case. *”179 Or 227. at Wooge, In Gum, Adm. v. although the court held that, violation of requiring keep right
the statute
a driver
half
negligence per se,
of the road is
the statute is not an
requirement:
absolute
“* * * Furthermore,
not con-
sidered violated in instances where the driver,
acting
reasonably prudent person,
as a
avoid a collision
turns
approaching
with
left
vehicle
* * *”
traveling
in its
lane.
Then, 486, in McConnell v. Or problem we considered of violations Drawing safety equipment statutes. on the cases of involving operational statutes, we concluded that a equip- type should also be of excuse available in limited phrased for The rule such eases cases. we ment as follows: “* * * Any statutory of standard except that of law matter care party failed to may who it excused where comply that his violation shows with the statute beyond by control his was caused circumstances impossible, circumstances, it was, that under the might degree regardless exer- have care he of the comply cised, him the statute.” Or with for at 490. it clear to make later
This standard was
modified
impossibility of
literal
not show
that
actor need
compliance,
only
in his
the defect
but need
show
by
equipment
the exer
have
discovered
could not
been
highest degree
v.
of care. Ainsworth
cise of the
“* *
that an individual vio
These cases hold
lating
by
excuse his
a statute can
conduct
such
showing
or should
that he could not
not have com
Driving
plied
reasonable care.
the exercise of
Mills,
road,
Raz v.
side
231 (1962);
Wooge
Gum,
A dm. v.
Although the eases cited here all involved sudden
emergencies,
pointed
opinion
above,
as I have
out
Pozsgai
incorporate
in
failed to
that element into the
applicable
operational
statement of the rule
to
statutes.
apparently
oversight.
This was
the result of an
Pozs
gai
emergency
awas
sudden
case, and the element
emergency
recognized
opinion.
elsewhere in the
example,
For
the court said:
present
“The
case is identical to Raz Mills,
supra.
fendant ivas on the
In both the
case and in Ras the de
highway
side of the
sought
emergency
to excuse himself because of an
* * *”
situation.
explain his show conduct must that he was faced danger, light with sudden which his conduct up required to the standard measures a reason- man faced with a similar able See Re- 796, § statement, 2 Torts However, as person cases, a number of have said in we whose emergency own contributes cannot refuge emergency escape liability in the take for * *” * own fault. at 228. his Corp., Zellerbach In v. Crown 260 Or 454, Owre (1971), Holman, who J., was the Possgai opinion, said: author * * “* juries far, all cases So which have to decide whether the allowed been of an might operational excused have been
85 emergen- unanticipated ones which sudden and in cies were involved.” 439 P2d 584, 249 Or Avedovech, Harrison also, v.
See, Possgai, shortly (1968), which after in we decided 877 allowing emergency jury approved the instruction a operational of an violation statute. defense to a 466 P2d 305, 306-307, 255 Or Lund, In Tokstad v. majority’relies, (1970), upon we said: which stay upon requires a driver his “A statute highway the law this of the in state own side negligence per of a is se. a violation statute stay a Nevertheless, we have held that failure right upon per road is side not offending driver went on the if the se through Mills, no his own. Raz v. side Or fault (1962); 372 P2d Harrison v. 227-228, 584, 588-590, Avedovech, (1968).” pointed above, out were,
Both and Harrison Raz emergency Pozsgai not was mentioned sudden cases. opinion, and the rationale case in the Tobstad point is clear is that this is not clear. "What on primarily on focused another was court’s attention disposition of the ease. determined issue, which that we intended in Tobstad to initiate I do believe statutory negligence. Certainly change law Highland Truck intention Mennis had no such we ing, P2d 464 in which Tob Inc., prior in dicta and cases were not cited stad mentioned. disapproved my opinion or should
In Tokstad clearly hold other cases limited its facts. Our operational vehicle of a motor except negligence per when there is evidence se, jury find that the actor was could from which emergency confronted with a sudden and, the face emergency, reasonably. of that acted The instruction given permitted in the case to excuse statutory violation if it believed the defendant was acting reasonably, regard without to the existence of I believe this instruction was an in- correct statement of the law and, under the facts of prejudicial plaintiff. this case, *13 I dissent.