*1 Argued April 5, June reversed LINNELL v.
DIMICK 2d 734 402 P. Roseburg, argued Geddes,
Paul E. the cause for appellant. the brief were Geddes, On Felker, Walton Roseburg. Richmond, & argued
Philip Levin, A. Portland, cause for respondent. him on the brief were With Levin Pozzi, Garry Portland. Kahn, & Wilson Chief Before Justice, McAllister, and Perry, Denecke O’Connell, Goodwin, Holman, Sloan, Justices. J.
HOLMAN, pedestrian upon while Plaintiff, judgment automobile. Prom a hit damages appealed. plaintiff for defendant issue is whether defendant’s motion for directed granted verdict have been on the basis that guilty contributory negligence matter of law. *2 foggy morning plaintiff
At about two o’clock a try place purchase find a decided to where he could cigarettes. He left his home walked to some point Highway Pacific at a about a mile from the city highway Roseburg. At the of turned south along and walked its east side for a distance of from expected to where he two to two one-half blocks vending cigarette finding a machine. Not to find one steps, proceeding to retrace he commenced there, northerly remaining while on the east side of the highway to traffic in with his back the lane of travel proceeding on his side of road. While so he was the rear struck from defendant’s automobile which proceeding northerly 'also was direction. highway uninterrupted had an white line, fog painted in the referred to line, easterly edge paved along portion. of its Outside graveled was a shoulder of estimated to be from three various witnesses to seven feet beyond which was ditch. in width Plaintiff remem- nothing subsequent being point at a bers roadway approximate at the location he was struck. from one to time was two feet At that outside the graveled fog impact line on the shoulder. The of his body of defendant’s the front automobile was half- way right-hand of the center the hood and between swerving edge Defendant the vehicle. impact time of at from left this the occupying he had conclude been could the full the road. shoulder approach of testified lie did not see the testimony that he and there is no
defendant’s vehicle Immediately prior to the accident he had seen heard it. coming opposite a car from the direction which was ways.” “up quite a There was evidence from been found to have been which defendant speed per traveling at a of 40 miles hour. contributorily
Defendant claims that law as matter of because of his violation which reads as ORS 483.220 follows: any using when outside “Pedestrians, incorporated shall use the left-hand cities, side right-hand of such so as to leave the side passing free for vehicles in the same direction and safety meeting proceeding and for vehicles direction.” Plaintiff was in violation of the statute. The conditions under which violation of a statute will responsibility injuries establish aas matter of *3 (1) law are as follows: there must be a causal con- nection between the conduct which violates the law injury; (2) party seeking charge and the to other with violation of the statute must be a member persons of the class of intended to be benefited legislation; (3) and the harm which occurred prevent. must be the kind the statute was intended to v. Portland Traction Co., Smith 226 Or 221, 225, (1961). P2d 899
There can be no doubt that the harm which occurred'
plaintiff
to
kind the statute was intended to
prevent. This
in Lemons v.
court,
Holland, 205 Or 163,
(1955),
P2d
“* * # primary purpose of ORS 483.220, supra, pedestrians is to make certain that see
approaching proceeding toward them so as step place to able to aside to or remain in a * * *” safety. safety protection The statute is operator, both the and the vehicle and the persons of the class of is therefore defendant one expressed purposes one of the Also, be benefited it. right-hand is “to leave the side free of the statute passing in the same direction.” vehicles urges that there was evidence from which plaintiff found that could not could have position the accident had be been in a avoided have oncoming automobile. He claims to see accident would could have decided the have plaintiff’s anyway happened if violation and, so, have been a cause of the accident would not suggests injuries. Plaintiff that defendant and his approached in a normal manner and when could have plaintiff right swerved plaintiff picked him off the shoulder before from which an in- it. As evidence such avoided plaintiff points to defendant’s could be drawn, ference driving testimony down the that he was testimony plain- impact half-way body the front of his vehicle was tiff’s of the hood and the side, the center between was on the road. Plaintiff claims that it was shoulder impossible for defendant drive physically down and hit portion of his automobile while defendant unless swerved to the on the shoulder *4 he him before swerved and hit direction. plaintiff have avoided eonld not that inference
An only that drawn from accident eonld presence vehicle of defendant’s indicated had been sudden that was so the shoulder proper on- facing direction to see in the stepped into coming not have still vehicle, no such accident. There is avoid the ditch to testimony. causal con- no There was injury and his nection between negligence was Plaintiff’s to be submitted among who those accident. Plaintiff is a cause of the consequent responsible for and are a statute violate injuries. contends that he within also falls “justifiable violation” discussed in
doctrine (1956) pages Harper 1005-1011 James applied. Plaintiff contends doctrine dangerous found that it was more could have foggy on a dark twice to cross along wrong night to walk two blocks its than it was his violation statute was and therefore side, justified. if believe that even this court should We proper adopt such a doctrine, decide, justify application facts to its are not sufficient highway was feet wide from here. 33y2 fog light. fog and the line to line traffic was guilty conclude con- We tributory negligence as a matter of law and defendant granted the directed have been verdict for judgment of the circuit he moved. eourt reversed. specially concurring. C.
MoALLISTER, J., majority opinion only the result of the I concur admittedly walking, because on. *5 wrong side of the with his back to defendant’s approaching car, there is no evidence from which plaintiff’s comply it could be inferred that failure to degree with the statute did not contribute in some injury. to his dissenting.
SLOAN, J., walking testified that he was shoulder of the one or two feet from the edge pavement. The shoulder was about three feet wide. Defendant testified that was walk- ing in the middle of the north bound lane of traffic. If the had seen fit to believe by it would major- follow that the statute relied on ity significance. would had have little The may have inferred .that defendant have swerved onto the shoulder. majority
However,
basic fault of the
every pedestrian
it would bar
recovery
from
regardless
of how far he
be
from the
agree
I cannot
unequivocal
adopted
this
adherence to
the statute
majority
here and in Zahara v. Brandli,
majority
Or
O’CONNELL, J., opinion I am of the of negligence plaintiff’s contributory negligence opinion majority finds contributorily a matter of law because he violated a (ORS 483.220). v. Herron, In McConnell why day, explained I the determina decided party’s of a as matter of law tion present statute. The related violation adoption how the case illustrates of the violation-of- produce unsatisfactory formula tends to the-statute analysis problem of the real in the case. majority reasoning adopted decep
tively simple. It runs as follows. The violation negligence per 483.220 se; ORS violated *6 contributorily negli statute; the therefore is gent go cannot and the case to the The vice of reasoning assumption form of is its that the legislature has established standard. the The standard pedestrian requires a walk on to the left side of the highway. “Highway” interpreted to mean the gravelled portion of the road. The pedestrian is a established as matter of law if the conelusivly evidence shows that he walked with his oncoming back to traffic. problem aspect
The takes on a different if, as suggested my dissenting opinion in in the McConnell disregard identify we the statute and the standard apply we as a court believe should in this case. Approaching problem way the in this the first pedestrian necessarily a is whether fails to exercise care he walks due when with his oncoming back to pedestrian traffic. who on walks the travelled highway portion the with his oncoming back to the subjects greater danger himself to traffic much than portion on the travelled highway if he walks facing the traffic. There this same difference danger pedestrian gravelled when a in walks the highway. the person a amount of care on the shoulders of depend highway required to exercise may large upon the non- what he assume measure using
negligent do motorist will the pedestrian unpaved portion Whether facing highway has to or his back it generally to assume that he should be entitled suddenly will not veer off onto the shoulders motorist emergency. If there unless there is an is such an emergency likely pedestrian it is that the who faces any will little if chance of the traffic better safety pedestrian with back than the to traffic. Fisher,
In P2d v. 230 Or Kaufman (1962) we held that when automobile to veers off the is entitled infer, contrary, in absence of evidence acci- negligence. pedes- A dent from the driver’s resulted unpaved portion whether trian facing traffic, or with his back has emergency of an or the absence assume relatively negligence he will be safe. motorist’s way view matter in this we it seems When say although reasonable to the traffic on the back with his as matter of law, *7 portion unpaved pedestrian the necessarily to the is not his back with negligent. be a reasonable difference of There pedestrian opinion judicial to what a on the un- expect portion is entitled to travelled non-negligent respect motorist’s the conduct. with only width of the the entire road or whether However, pedestrian limits for the is off walk- the the ing of the side conclusion on the conducted himself due care has not that he only testing against after his conduct reached set that standard which the court has standard appraisal only intelligent set after an respective pedestrian of the motorist and the duties under such circumstances. negligent
If it to be held that conclusion should be as matter reached law, upon ground that the evidence establishes that by court, violated the standard set not because (and pointed was violated as I out in the McConnell this should be the rationale even if the court-made standard was influenced statute). existence jurisdictions provide help in
The cases
other
little
analysis.
respectable authority
ful
However,
duty
applies
that the
view
to face the traffic
pedestrians walking
paved portion
highway. ‹
jurisdictions
Even
those
which hold
that the
as a matter
of law
gets
nevertheless
to the
on the issue of last clear
violation. ›
justifiable
or
chance, causation,
In some
supporting
of the cases the evidence
these issues
inadequate suggesting
being
seems
not
courts,
happy
legislative imposed
awith
standard, ameliorate
by submitting
the strict standard
issues
suported by
adequately
evidence.
joins Denecke, J.,
this dissent.
‹ See
Highland
e.g.,
Lilly
al,
v. Chas. H.
Co. et
175 Wash
(1933).
generally
upon
pedestrians Thus the present standard I have recommended case is judicially through interpreta these courts established other tion of a statute. › See Blashfield, Cyclopedia 2A cited in cases of Automobile (1951). Practice, Law §