*1 619 Argued 1965 June affirmed June
RAY v. ANDERSON al et 2dP. *2 Cavanaugh, argued Portland, Thomas cause appellants. Vergeer him for With on the brief were & Portland. Samuels, argued Hannam, Portland, L. the cause for
James respondent. him on the brief B. Han With was Jack nam and John P. Portland. Ronchetto, Chief and Justice,
Before McAllister, Perry, and Holman, O’Connell, Denecke Sloan, Goodwin, Justices. J.
HOLMAN, appealed judgment a have from Defendants injuries damages personal plaintiff for favor arising by between vehicles driven out of accident plaintiff Lee. Plaintiff’s car was defendant facing parked on at the west curb south Southeast City plaintiff As of Portland. drovе 82nd Street away curb her vehicle was hit the defend- being operated southerly ants’ which was direc- tion. negligent contend
Defendants aas did matter of law because she not first see that her turning starting and from movement in the curb could safety give signal did made with nor she as warn- ing of her intent. 483.126(1) provides part
ORS as follows: highway “The driver be starting, stopping fore or from a dirеct see line shall first that such movement can be made *3 * * 2” safety. in driving Plaintiff testified that before from the curb she looked to the rear and saw defendants’ vehicle approaching a at distance of from 200 to 300 feet. There was evidеnce from which could be found that being operated speed defendants’ vehicle was at a of per spеed to 50 miles hour. The indicated for the per area miles hour. was 35
By requiring person, a starting, that before stopping, a or from direct line, must first see safety,
that the movement can be made ‘with
person
that
does not mean
the
this
takes
аction at his
looking,
peril.
appear
it would
to a
If,
reason
ably prudent person
safely
that such action could be
guilty
negligence
not
he would
be
of
taken,
as the
not be violated.
statute would
"Whether this was the
question
the
for
а
evidence,
the
under
was,
situation
jury-
*
“* *
provides:
When
further
The statute
may
affected
operation
vehicle
ever the
* * *”
required.
signal
Plain
by
is
movement
such
driving
signal
from
not
before
did
tiff admits
she
portion
the street.
the traveled
curb onto
the
еvery
to
require
instance
a motorist
not
law does
Hull, 193 Or
signal
give
intention: Schutt
of his
cir
(1951).
the
under
Whether,
the
so close at
vеhicle was
defendants’
cumstances,
appear
it would
curb that
drove from the
time
operation
person
of defend
that the
a reasonable
to
by
movement of
affected
the
would be
vehicle
ants’
required
signal
was a
рlaintiff’s
thus
jury.
the
question
absence
Plaintiff,
contrary,
the exercise of due
or until
notice to
contrary,
had a
known to
shоuld have
care she
being
presume
right
vehicle was
that defendants’
speed
operated
in conformance with the law:
at a
(1951).
Penner, 190
542, 556,
Or
Walker
being
evidence on
substantial
There
which
findings
regard
jury
with
their
both
could base
jury’s findings.
questions,
disturb the
do not
we
jury’s
consideration de-
The court took
negligent
plaintiff because
claim that
fendants’
way
right
yield to defendants’
fаiled to
she
charged as error. Defendants claim
vehicle. This is
way.
they
right
law
had a common
to the doctrine
court
committed
that a
This
is
way
exists
favor of
oncom-
law
common
*4
being
making
ing
met
one
a left
which is
vehicle
intersections across its lane of travel.
turn between
Blay-
(1940);
117,
P2d
Stith, 164 Or
100
485
Black v.
623
(1953);
Westlund,
lock
536,
Or
In the case Valdin Holteen and Nordstrom, (1953), Or it was hеld that it making was error to instruct on it un speed lawful to increase the being of a vehicle while passed by going overtaken and another allegation same direction when there negli was no gence attempted justify to this effect. Plаintiff by claiming proper instruction that it was under allegation yield that defendant right failed to way. rejecting In this contention thе court said, page at 157: * “* * yield ‘failure to of wav,’ specific negligence, only
as a act of could refer thе act of defendants to the left passing, while the act of and not speed.” to an increase of *5 right way was The in thаt situation existence of appeal, the not in the and the statement an issue holding quoted gratuitous not a was and court above right way properly question involved. that a was language in Brindle v. This was noted McCormick Mfg. supra. Corp., Lbr. & present jury was instructed
The in the case 483.216(1). provides that It, effect, relative ORS justified park driving was before ing that into lane of travel she must first see lane safety. Logically, be made with such movement could the lanes must mean that vehicles this reasonably prudent that a which are so close travel operation person their would would conclude that prece by plaintiff’s havе action affected plaintiff’s It is our conclusion vehicle. dence over sufficiently on deline instruction that an right- рarties rights and that a of the the relative ated unnecessary inapplicable. of-way instruction judgment court affirmed. trial is specially concurring. J., O’CONNELL, my dissenting opinions stated in For the reasons (1965) Linnell, 240 Or in Dimick 240 Or Herron, and McConnell regard (1965), the violation not of ORS I would pres significant (1) of the solution as 483.126 employs this court Hereafter, when ent case. negligence, of a statute is violation that the formula judgment majority yielding of the I shall, ap from further comment unless refrain the court, practice produces unjust pears to me result. opinion. joins in this J.,
Denecke,