BEGLAU, Respondent, v. ALBERTUS, Appellant.
Supreme Court of Oregon
Argued and submitted March 31, affirmed June 12, 1975
272 Or. 170 | 536 P.2d 1251
BEGLAU, Respondent, v. ALBERTUS, Appellant.
536 P2d 1251
Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison, and Donald Atchison, Portland.
TONGUE, J.
This is an action for damages for personal injuries sustained when plaintiff‘s car collided with defendant‘s Caterpillar tractor as the tractor was crossing a highway. The case was tried before a jury, which returned a verdict in favor of defendant, finding as a matter of comparative negligence that defendant‘s negligence was less than plaintiff‘s contributory negligence. Plaintiff then moved for a new trial, based primarily upon the failure of the court to instruct the jury relating to statutory requirements for headlights on defendant‘s tractor. The trial court granted the motion for a new trial. Defendant appeals. We affirm.
The facts.
On November 18, 1972, at about 5 p.m., plaintiff, with four passengers, was proceeding south from Coos Bay on Highway 101, at a speed variously estimated at between 40 and 70 miles per hour. According to the
As plaintiff‘s car came over the crest of a hill just north of the intersection of Highway 101 and Southport Road, defendant‘s Caterpillar tractor was proceeding to cross the highway on Southport Road. At that point Highway 101 was a four-lane highway, with a center median strip.
Defendant had finished working with his tractor at a nearby log dump east of the highway and was proceeding on Southport Road to his home, which was located on that road west of the highway. Defendant testified that in crossing the highway he waited at the median strip before crossing the two south bound traffic lanes. He testified that he could see north on the highway to the crest of the hill some 500 to 700 feet away and that after waiting for one car to pass he started to cross the highway at right angles to it. His tractor was equipped with recessed front headlights and with a recessed white taillight, none of which were operable at that time. There were no reflectors on the side of the tractor, which was painted yellow.
Plaintiff testified that his car had its lights on and was in the outside lane of the highway as he came over the crest of the hill and that he did not see defendant‘s tractor until too late to avoid hitting it. He then applied his brakes, but could not stop, and ran into the side of the tractor, which was then in the outside southbound traffic lane, and was proceeding at a speed of about four or five miles per hour. Defendant testified that the left lane was clear and that plaintiff had previously changed from the left to the right lane.
Four basic questions are presented by this appeal: (1) Do the statutory lighting requirements for motor vehicles apply to a tractor crossing a highway? (2) Was plaintiff entitled to such “statutory instructions” when, as in this case, the tractor was crossing the highway at right angles? (3) If the court erred in its holding that defendant‘s tractor was not subject to the statutory lighting requirements for motor vehicles, was that error preserved by plaintiff at the time of trial by proper objection or exception? and (4) If not, can such an error be the ground for the granting of a new trial?
1. The statutory requirements for the lighting of motor vehicles are applicable to a tractor when operated on a highway.
“When lights are required to be on; application of visibility and height provisions. (1) Subject to the specific exceptions with respect to parked vehicles, lighted lamps and illuminating devices as specified in
ORS 483.402 to483.442 shall be displayed by:“(a) Every vehicle upon a highway within this state at any time from a half-hour after sunset to a half-hour before sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles are not clearly discernible on such highway at a distance of 500 feet ahead.
* * * * *”
“Head lights required; lighting and braking equipment on bicycles. (1) Every motor vehicle other than a motorcycle shall be equipped with at least two head lamps, at least one on each side of the front of the vehicle.
* * * * *”
At the time of trial the trial court was under the impression that defendant‘s tractor was exempt from these requirements under
“The provisions of this chapter with respect to equipment on vehicles do not apply to implements of husbandry, road machinery, road rollers, farm tractors or vehicles described in paragraph (2) of subsection (4) of
ORS 481.205 [i.e., historic vehicles maintained as collectors’ items], except where expressly made applicable.”
“(1) ‘Implement of husbandry’ means every vehicle designed exclusively for use in agricultural operations. ‘Implement of husbandry’ does not include vehicles designed exclusively for the transportation of persons or property.”
A “farm tractor” is defined by
“(3) ‘Farm tractor’ means any self-propelled vehicle designed primarily for use in agricultural operations for drawing or operating plows, mowing machines and other farm equipment or implements of husbandry.”
The terms “road machinery” and “road rollers” are not defined by the Motor Vehicle Code. Defendant‘s Caterpillar tractor was clearly not within any of the foregoing classifications.
In other words, although defendant‘s tractor may
It follows, as recognized by the trial court on plaintiff‘s motion for a new trial, that it erred at the time of trial in holding that defendant‘s tractor was exempt as a matter of law from such statutory lighting requirements.
2. The statutory lighting requirements were applicable in this case despite the fact that defendant‘s tractor was crossing the highway at right angles to plaintiff‘s car.
Defendant contends that because the provisions of
In support of that contention defendant cites Spence, Adm‘x v. Rasmussen et al, 190 Or 662, 226 P2d 819 (1951), involving a bicycle without a front lamp, as required by statute, and which was struck from the rear by an automobile. In that case we said (at 678) that head lamp requirements for bicycles were “designed for the benefit of those approaching from the front” and (at 680) that “there is no evidence * * * that if the front lamp on this bicycle had been burning it could have been better seen by one operating a motor vehicle from the rear,” with the result that it was improper to instruct the jury on the statutory requirements for bicycle head lamps. We also said, however (at 679), that “the requirements of the statute respecting front lamps on motor vehicles have entirely different purposes than the statute respecting bicycle lamps.”1
Defendant has cited no cases involving vehicles crossing a highway or proceeding through an intersection at night without headlights on. Although this court has not previously considered such a case, courts of other states have considered such cases and appear to hold that the failure of a motorist to have his headlights on after dark is actionable negligence in intersection collisions. As stated in Annotation, Driving Motor Vehicle Without Lights or With Improper Lights as Affecting Liability for Collision, 21 ALR2d 7, 41, 43 (1952):
“The function of head-lamp beams as a warning to other motorists, rather than as a means of illumination to the driver, is of especial importance in the cases involving intersectional collisions between crossing cars * * *.”
“* * * * *”
“Driving an unlighted motor vehicle into an in-
tersection or across the path of another vehicle, causing a collision, has been held in some cases to be negligence rendering the defendant liable as a matter of law * * *.”
Numerous cases support these propositions. See, e.g., Normand v. Piazza, 145 So 2d 110, 112 (La App 1962); Meehl v. Barr Transfer Co., 296 Mich 697, 296 NW 844, 846 (1941); and Rogers v. Bouchard, 60 Tenn App 555, 449 SW2d 431, 437-38 (1969). See also Butler v. Cromartie, 339 Mass 4, 157 NE2d 649, 651 (1959); Estate of Dauer v. Zabel, 19 Mich App 198, 172 NW2d 701, 708 (1969); and Craig v. Gottlieb, 161 Pa Super 526, 55 A2d 573, 574 (1947).
We agree with these cases and hold that in cases involving vehicles crossing highways or through intersections at night without their headlights on, and which collide with cars approaching at right angles, as in this case, an appropriate instruction should be given relating to the duty of the drivers of such vehicles to have their headlights on.
3. No proper requests were made by plaintiff for appropriate instructions on the statutory requirements for headlights on defendant‘s tractor.
Defendant further contends that plaintiff made no proper request for appropriate instructions on the statutory requirements for headlights on defendant‘s tractor. We agree.
Aside from the fact that plaintiff did not serve and file requested instructions in writing at the beginning of the trial, as apparently required by Rule 28 of the Rules of Court for Coos and Curry Counties, plaintiff‘s requests for instructions on the statutory requirements for headlights were clearly insufficient.
The only request by plaintiff‘s counsel was an oral request for “the following ORS statutory instructions,” including
Nevertheless, if plaintiff‘s motion for a new trial had been denied and if this were an appeal from the resulting judgment for defendant, plaintiff‘s appeal would fail because of the insufficiency of plaintiff‘s request for instructions on the statutory requirements for headlights. Plaintiff places primary, if not sole, reliance in this appeal upon its requests for instructions on
It is fundamental that a request for an instruction may properly be denied, without error, unless the requested instruction is clear and correct in all respects, both in form and in substance, and unless it is altogether free from error. Hotelling v. Walther, 174 Or 381, 387-88, 148 P2d 933 (1944); Wiebe v. Seely, Administrator, 215 Or 331, 360, 335 P2d 379 (1959); Stanich v. Buckley et al, 230 Or 126, 132, 368 P2d 618 (1962); Owings v. Rose’, 262 Or 247, 258, 497 P2d 1183 (1972). The trial court cannot be required to edit requested instructions and to omit parts that are incorrect or inapplicable. See Brigham v. Southern Pacific Co., 237 Or 120, 124, 390 P2d 669 (1964).
It does not necessarily follow, however, that the trial court could not properly grant a new trial in this case.
It is fundamental that a new trial may be ordered by a trial court only for prejudicial error,2 despite what has been referred to as “loose expressions” in some of our cases to the effect that a trial court may grant a new trial as a matter of discretion, subject to reversal only for abuse of discretion.3
The following cases, among others, include “loose expressions” to the effect that a trial court has discretion to grant a new trial: Shain v. Meier & Frank Co., 140 Or 518, 523, 13 P2d 360 (1932); Cicrich v. State Ind. Acc. Comm., 143 Or 627, 635, 23 P2d 534 (1933); Karberg v. Leahy, 144 Or 687, 692, 26 P2d 56 (1933); Fen-
Examination of these and similar cases reveals that in most, if not all of them, there existed substantial and prejudicial error. However, to the extent that such cases may be understood to hold that a trial court has the discretion to grant a new trial in the absence of prejudicial error, such cases are overruled.
It is true, however, that when error has been committed this court, in determining on an appeal from an order granting a new trial whether such error was so prejudicial as to prevent a party from having a fair trial, usually defers to the discretion of the trial court.4 It has also been said that a stronger showing is required to reverse an order granting a new trial than to reverse an order denying a new trial.5
Upon a review of our previous decisions in which orders granting new trials have been affirmed for prejudicial error it appears that such cases fall into three categories: (1) Cases in which such orders have allowed motions for new trials based upon grounds specified in
In this case a new trial could not be properly granted under
Prior to the adoption in 1933 of what is now
Thus, in Archambeau v. Edmunson, 87 Or 476, 486, 171 P 186 (1918), this court said that a trial court might properly order a new trial for error, even if no proper objection or exception was taken, if the error was such that “if properly excepted to or seasonably called to the attention of the court and the motion denied would have been sufficient cause for a reversal” and if the trial court was satisfied that the party had not had a fair trial. On that basis, orders allowing motions for new trial were affirmed for prejudicial errors even though such motions were not based upon errors in law to which exceptions had been taken, as required by what is now
In 1933 what is now
Two years later, however, in Correia v. Bennett and Johnson et ux, 199 Or 374, 261 P2d 851 (1953), this court affirmed an order granting a new trial where the motion for a new trial specifically stated that it was based in part upon error to which no proper objection or exception had been taken (quoting Archambeau v. Edmunson, supra) and where the order granting the new trial was not entered within the 30-day period required for new trials granted by a trial court on its own motion. In so holding, this court said (at 381):
“* * * The mere fact that no exception was saved at the time of trial did not bar defendant from thus claiming error on account thereof in his motion for a new trial, nor did the court‘s action in adopting that ground as the basis of its order granting a new trial give to the order the character of one ‘granted on the court‘s own motion.‘”
and (at 382):
“* * * Where such error occurs on a trial, whether excepted to or not, it may form the ground
of a motion for a new trial, and such motion, based thereon, may properly be allowed. Or, for such error appearing of record, the trial court may at any time within 30 days after the entry of judgment award a new trial on its own motion.”11
In this case defendant‘s motion was based, among other things, upon “error in law in the court refusing to give statutory instructions pertaining to vehicle lighting requested by the plaintiff
The order granting the new trial in this case was based upon a finding and conclusion, among other things, that
“The question whether Defendant‘s vehicle was one of those exempted from the lighting requirements of the above cited statutes by
ORS 483.032(3) was properly a question for the jury, and the court erred in holding that the Defendant‘s vehicle was exempted as a matter of law from these lighting requirements.”
That order was also based upon a finding that “the court‘s error was prejudicial to plaintiff.”
In our judgment, the grounds stated in plaintiff‘s motion for a new trial were sufficiently related to and supportive of the grounds stated in the order granting the new trial so as to satisfy the test as stated in Rosencrans and the rule as stated in Correia.
It may be contended, as urged by the dissent-
No such contentions, however, are made by the appellant in this case and its reply brief does not controvert the contention in respondent‘s brief, consistent with the rule of Correia, that:
“* * * A new trial may be granted, either on motion of the trial court or on the plaintiff‘s motion, for prejudicial error in instructing the jury even though the aggrieved party has made no proper request for an instruction or even though he has made no exception to an instruction erroneously given. * * *”
Under these circumstances, and because the trial court could have easily granted plaintiff‘s motion for a new trial within 30 days if there had been any previous indication by the court that Correia may be overruled as stating an unsound rule, we decline to consider those contentions in this case. It follows that the order of the trial court granting a new trial was proper for the purposes of this case, even though not entered within 30 days.
5. The trial court could properly find that the error in failing to give the instruction was prejudicial.
Finally, we must consider the holding of the trial court that the error in its previous ruling that
As previously noted,12 we have held in many cases that when error has been committed we ordinarily accord considerable latitude to the trial court in its determination whether such an error was prejudicial so as to provide a proper basis for the granting of a new trial when it appears that the chance of prejudice is substantial.
It is established in Oregon that “if a litigant can prove that his adversary violated a statute enacted to regulate * * * the equipment * * * of motor vehicles, he is entitled to an instruction that such conduct is negligence.” McConnell v. Herron, 240 Or 486, 490, 492, 402 P2d 726 (1965). If, in such a case, the defendant produces evidence that he nevertheless acted as a reasonably prudent person under the circumstances, he is then entitled to an instruction to that effect, but, in any event, plaintiff is entitled to the initial instruction on violation of the statute. See Barnum v. Williams, 264 Or 71, 78-79, 504 P2d 122 (1972). Accordingly, the trial court was correct in this case in holding that plaintiff was entitled to an instruction on the requirements of the headlight statute.
Under the instructions on common law negligence, as given by the trial court, the jury found that defendant‘s negligence contributed 36 per cent to the accident. Under these circumstances, we agree with the trial court in its holding that plaintiff was prejudiced by its failure to give the instruction to which plaintiff was entitled in terms of the strong and mandatory requirements of the headlight statute, rather than in the
Considering the wide latitude which we have always accorded to trial courts in determining whether error is prejudicial, we cannot say that this trial court, based upon its observation of the conduct of the trial, including the effect upon the jury of argument by counsel and instructions by the court on the subject of headlights, was wrong in its holding to the effect that plaintiff was prejudiced by the failure to give such an instruction.13
For these reasons we affirm the order of the trial court granting a new trial.14
O‘CONNELL, C. J., dissenting.
I cannot agree with the majority‘s conclusion that the failure to give an improperly requested instruction constituted error sufficiently prejudicial to sustain the order for a new trial. The jury was instructed as follows:
“Now in this case the Plaintiff has alleged that the
“* * * Such a set of circumstances affords an adequate basis upon which the trial judge may find prejudice. We do not intend to hold, in the circumstances here, that * * * the instructions was prejudicial as a matter of law, but only that each constituted an adequate basis for a finding of prejudice by the trial judge. * * *”
Defendant was negligent in failing to illuminate his tractor. The operator of equipment such as the tractor being operated by this Defendant has a duty only to illuminate his vehicle as a reasonable person would in the same or similar circumstances. That should be as a reasonably prudent person would in the same or similar circumstances.
“In determining this question you should take into consideration the extent or degree of danger reasonably to be expected under the circumstances of light and visibility you find prevailed at the time of the collision.”
Thus, the jury was alerted to the safety promotion function of the statute but not its technical details. However, the precision of the statutory requirement is entirely irrelevant to the facts of this case because defendant admitted he had no functioning lights at all.15 I can see no logical basis on which a jury might find a failure of one who does not light his vehicle at all when a prudent man would do so is more culpable because a statute also requires him to do what is prudent.
This view is supported by Barnum v. Williams, 264 Or 71, 504 P2d 122 (1972), in which we abolished the doctrine of negligence per se and adopted in its stead the rule that violation of a safety statute creates a rebuttable presumption of negligence. This demonstrates that the statute does not, in itself, impose a civil standard of conduct but serves, instead, as a persuasive indication of community norms. Thus, an instruction in the form of common law duty which, though less detailed, is as extensive as that imposed by the legislature certainly should be sufficient to apprise the jury of the social norm which it is called upon
I differ from the majority additionally in that I would overrule Correia v. Bennett and Johnson, 199 Or 374, 261 P2d 851 (1953) and those cases following it16 and hold that a new trial may be granted only when the requisites of
I would reverse the order granting a new trial and reinstate the judgment based upon the jury‘s verdict.
BRYSON, J., joins in this dissent.
I specially concur in the majority opinion because I agree with the majority that the trial court could grant a new trial because of its failure to give the requested instruction. I disagree with the majority‘s decision however, that the error was not properly “excepted to” because no proper request was made. For this reason I would find it unnecessary to decide whether the trial court can grant a new trial on a party‘s motion for error not properly “excepted to.”
The plaintiff requested the trial court to give instructions on
This proceeding however, is not an appeal from a judgment for defendant. It is an appeal from an order of the trial court granting a new trial on the ground that the trial court erred in refusing to instruct as requested. The considerations supporting the rule that a judgment will not be overruled on appeal because of the trial court‘s failure to give an instruction that was insufficiently requested are completely different than the considerations present in deciding whether the trial court was in error in granting a new trial because of its failure to give a requested instruction.
In Hotelling v. Walther, 174 Or 381, 387-388, 148 P2d 933 (1944), we discussed the reasons why an appellate court should not hold a trial court in error for failing to give an insufficiently requested instruction. We stated an improperly requested instruction keeps the trial court “in the dark“; it “could well prove to be a trap both for the court and the opposing party.”
“* * * if the plaintiff deemed the instruction in question proper and desirable, he should have made known his wish to the court by a specific request, distinctly setting forth the instruction. The trial judge, no matter how competent and learned he may be, is not as a rule clairvoyant. He is not expected to divine counsel‘s unexpressed thoughts about the law not to speculate upon the meaning of a cryptic request for instructions such as that under consideration.”
It is not error on appeal because the trial court has not been adequately informed of the party‘s contention and therefore cannot make an informed ruling.
Those considerations are not present in this case. The trial court fully comprehended the substance of plaintiff‘s request. The trial court denied the request because of its expressed opinion that the headlight statutes were not applicable to defendant‘s tractor. The trial court in effect said at trial, I understand your request but I will not give such an instruction. At the hearing on the new trial, the trial court decided it was in error and the statute did apply and therefore the instruction should have been given.
Under these circumstances I can conceive of no reason for holding the error was not properly excepted to.