*1
February
15,
Argued
1972,
affirmed
October
Respondent.
Appellant,
DeBUSE,
FREUND,
J. Laurence Cable, the cause for Portland, respondent. him on With the brief were Souther, *2 Spaulding, Kinsey, Schwabe, Williamson & Gordon Ridgway Foley, Jr., Moore and K. Portland. Before O’Connell, Chief Justice, and McAllister, Justices. Denecke, Holman, Bryson, Howell and DENECKE, J. plaintiff alleged injured
The he was when the driving car he was was struck in the defend- rear pickup. ant’s The defendant testified the collision unexpectedly because his occurred brakes failed. The jury plaintiff returned a verdict the defendant and appeals. plaintiff contends the trial court
The erred jury failing to the the instruct defendant was plaintiff’s The basis of motion was that the liable. negligent per se defendant was because his brakes “adequate to control were the movement of and [his] stop hold such vehicle” and his brakes good working were not “maintained in order,” all in testimony of The violation ORS 483.444. defendant’s apart” after the collision he “tore was that his wheel brake drum which and found a broken was the cause of the failure. brake ago in Barnum v. weeks
Just 264 Or expressed (1972), difficulty 122 the 504 P2d this application negligence the court has had the Barnum “opera- The case doctrine. involved an se driving “wrong statute, vehicle on tional” motor the
i.M9 party is in viola- if a “that road. held side” the negligent party is such a statute, tion of a motor vehicle (cid:127) party evidence introduces such of law unless as a mater the find that of fact could from which the trier reasonably acting prudent person under a was as whether is 264 at 78. issue here circumstances.” applied of motor to violations this rule should also be equipment hold vehicle statutes. We it should. Oregon Initially, was that violation law setting required for motor standard statute equipment stated was se. We negligence although per se Avas violator it reasonably person. might prudent acted as a have 212 319 P2d James, 375, 386, Nettleton v. (1958). however, In same we stated that if case, statute Avasbecause of violation might operator defect” “latent not be liable. Herron, 486, 493,
In
*3
(1965), in
P2d 726
the defendant had
Avhich
defective
from the strict
Ave
se
brakes,
departed
negligence per
'
''
;
(cid:127)doctrine. We
stated:
“* *
of
We
now
opinion
are'
codé was
intended to eliminate
motor-vehicle
* *
of
from the laAv of torts.
the element
fault
*.
“Accordingly,
apply
equipment
we'
to
defects
applied
past
opera
in
rule Ave have
to
the same
Liability, in both
tional errors.
upon
situations is based
upon
theory
fault
than
of absolute
rather
'
:
liability.
,,
*.”
at 491.
240 Or
to
defects
not, hoAvever, “apply
did
equipment
We
we
in the
rule
haATe applied
past1
opera
the same
we
Instead,
adopted
errors.”
rule someAvhere
tional
operational
the rule
errors
and
applicable
betAveen
rule for
statute violations.
equipment
former
We
our
stated a.
would be excused from a violation of
equipment
an
prove
if
statute
lie could
“that his non-
compliance
by
beyond
was caused
circumstances
his
impossible,
control
regardless
and that it was
of his
degree
comply
of care, for him to
with the statute.”
We were called the stand- applied ard in supra (240 McConnell v. Herron, Or 486), equipment of operational to violations both and Pozsgai statutes. In v. Porter, 249 84, 86-88, (1968), acknowledged P2d 818 apply- that we were ing negligence per a different se rule for violations of equipment operational statutes than for violations of “theoretically” may statutes. admitted We there justification be “no for the rule of McConnell which safety equipment treats the violation of statutes dif- ferently operational than the violation of statutes.” atOr 87-88.
In Ainsworth v. Deutschman,
There is no or basis for treat- ing of vehicle violations differently statutes operational than experience statutes and our *4 taught attempts preserve any has us that distinction in confusion. have resulted 486), (240 supra Herron, 596), (251 supra are Deutschman, Ainsworth v. they of vehicle hold violations as that overruled insofar negligence se unless statutes are occurred the violation that can establish violator higher care than despite of a standard his exercise reasonably prudent person. hold, as that of a 71), (264 supra “that did in Barnum v. [equipment] party of a motor vehicle if in violation a is negligent law party as matter is such a statute, party from which the evidence introduces unless such acting was as find trier of fact could that reasonably person prudent circumstances.” under the 264at 78. question intro- is whether the evidence
The next jury for a to find duced is sufficient the defendant reasonably prudent that defendant acted as a person despite find his violation of the statute. We it is. pickup was a 1955 which defendant
The vehicle eight prior purchased in about months had jury could find that the the collision. The defendant except prior with the trouble brakes had about no adjusted the collision he three weeks before them. He normal because of wear of the testified that brake push pedal lining the brake had down too he far braking. by adjusting get He corrected this pedal. testified the broken defendant brake drum in this failure manner: the brake
caused [Y]our brake drum “A is round with lining. They push against out the brake brake drum. under spread drum cracked and brake out And this the pressure application brakes, allow- — ing amount excessive of fluid to enter the *5 .452 cylinder. piston pushes
wheel lining that the brake causing pedal go out, the brake to the floor. *. [*] [*] $ you go push
“Q Where does all that fluid when your pedal? on cylinder
“A You have a whéel drum. It is a cylinder piston small on a in wheel with a it. “During braking, lining normal the brake will only you push only so far and will travel a short you distance, but due to the broken drum, travel cylinder the whole distance; absorbs all the cylinder.” that was master fluid in the
We find this to be sufficient evidence to enable jury to find that the defendant acted as á reason ably prudent person. prior warning there When is no any possible in defect the brakes a reasonable operator required apart” is not “tear a defect. ‹ inspect for wheel to
Affirmed. dissenting.
McALLISTER, J., dissenting my opinion In in Barnum v. pointed (1972) 264 P2d I 71, 81, 122, 127 Or at 504 out majority incorrectly interpreted prior had that the our involving operational motor vehicle cases statutes. In majority prior case the overrules our present safety involving my statutes. In decisions opinion although applying two lines eases, dif prior entirely standards, were, Barnum, ferent con my stated For the reasons in sistent. dissent in join majority abandoning I cannot case, the rule of' se. ‹ For jurisdiction having “negligence a similar case in a Oregon’s, Maves, rule like see O’Donnell se” Ariz (1972). P2d 1205 my opinion, failed the defendant
Moreover, proof even, he could his burden meet degree highest discover care, the exercise of drum. in the brake the defect I dissent.