Barnum v. Williams , 264 Or. 71 ( 1972 )

DENECKE, J.

The plaintiff brought this action for damages for personal injuries allegedly incurred when the motorcycle he was driving collided with the car the defendant was driving. The jury found for the defendant and the plaintiff appeals, contending the trial court gave two erroneous instructions.

The collision occurred on a rainy day on Vista Avenue, in Portland. The plaintiff was going uphill and rounding an extremely sharp curve to his left. The defendant was coming downhill. Vista Avenue is divided into two lanes by a yellow line. The line is much closer to the curb on the defendant’s side. The jury could have found that the impact occurred on or near the line or on the plaintiff’s side of the line. The jury could also have found that when the defendant observed the plaintiff, the plaintiff was riding on the center line and leaning into the turn; the defendant in the narrow lane was near the center line and became apprehensive that they might collide; the defendant applied Ms brakes and slid into plaintiff’s lane and collided •with, the plaintiff.

The trial court instructed the jury:

“In addition to common law negligence, there is also statutory negligence, which consists of the violation of a law which, for the safety or protection of others, requires certain acts or conduct or forbids certain acts or conduct. Were I to call your attention to any such law, a violation of such law is negligence in and of itself; with this exception: If you find that, under all the attending circumstances, a statute cannot or should not be complied with by a person exercising reasonable care for the safety of himself and others, then I instruct you that you may find that the failure to strictly observe the statute should be excused and should not be deemed negligence.”

The problem posed by the instruction originates in the difficulties this court and others have had with the application of the statutory negligence per se doctrine.

We have repeatedly held that violation of a law or ordinance is negligence or contributory negligence in itself, i.e., per se. This has been an exception to the usual rule that whether one is negligent depends upon whether one acted as a reasonably prudent person. Under the negligence per se doctrine the question of whether the actor acted as a reasonably prudent person is irrelevant; the only question is, did the actor violate the statute?

Despite our stated adherence to the doctrine that violation of a statute is negligence per se, we could not submerge our deeply-rooted tradition that fault is the basis of liability in tort. In a defective brake case, we stated: “We are now of the opinion that the motor vehicle code Avas not intended to eliminate the element of fault from the Iuav of torts.” McConnell v. Herron, 240 Or 486, 491, 402 P2d 726 (1965).

Early in the development of the tort Ieav of motor vehicles Ave stated the doctrine that violation of a motor vehicle operation statute is negligence per se. At the same time, however, Ave engrafted the principle of fault into this doctrine. Marshall v. Olson, 102 Or 502, 511-513, 202 P 736 (1922). In the Marshall ease the jury could have found that the defendant turned in violation of a city ordinance. The court observed: “* * * [I]t Avould be unreasonable to maintain that a man Avould be culpably negligent under such circumstances, if he turned either to the right or to the left to aAmid imminent danger of collision, Avhen the peril could be escaped only by such action, and that, too, Avithout injury to any one else: * * *.” 102 Or at 512-513.

This line of reasoning Avas carried into cases in Avhieh one of the drivers Avent onto the “Avrong” side of the road. One such case is Gum, Adm. v. Wooge, 211 Or 149, 158, 315 P2d 119 (1957), in Avhieh Ave said: “Furthermore, the statute is not considered violated in instances Avhen the driver, acting as a reasonably prudent person, turns to the left to avoid a collision Avith an approaching vehicle traveling in its Avrong lane. * * *.”

Most, but not all, of our decisions on this issue have dealt Avith a situation in Avhieh the driver suddenly Avas faced with a vehicle, a pedestrian, or some other obstacle on his side of the road and reacted by turning into the “wrong side” of the road in violation of the statute. In such cases we have approved instructions to the effect that violation of the statute requiring one to drive on Ms own side of the road is negligence per se; however, the driver is not negligent if he is faced with an emergency not of his own making and in turning onto the left side of the road acts as a reasonably prudent person would have acted when faced with a similar emergency. Harrison v. Avedovech, 249 Or 584, 588-590, 439 P2d 877 (1968).

The sudden emergency caused by someone or something in the driver’s lane is the factor which most commonly makes a swerve to the “wrong side” of the road the act of a reasonably prudent person. The rule, however, has not been and logically cannot be confined solely to such circumstances.^①

The presence of an emergency does not change the standard of care; the standard remains reasonable care under the circumstances. If a party acts unreasonably in the face of an emergency, he is negligent; if he acts reasonably, he is not negligent. The emergency is simply one of the circumstances to consider in judging whether the actor behaved reasonably under the circumstances.

“The rule of reasonable care under all of the circumstances applies even in emergencies, the emergency being one of the circumstances to be considered.” Frangos v. Edmunds, 179 Or 577, 607, 173 P2d 596 (1946).

In some of our cases in which a party acted contrary to a traffic statute the driver did not turn onto the “wrong side” in response to an emergency but went onto the “wrong side” for other reasons.

In Tokstad v. Lund, 255 Or 305, 466 P2d 938 (1970), the defendant was not faced with an emergency. He slid on packed snow across to the plaintiff’s side of the highway. We held: “There was evidence that although the defendant Lund was upon the wrong side of the road when he struck plaintiff’s vehicle, the defendant, nevertheless, was acting as a reasonably prudent person.” 255 Or at 307.

The stated rationale for our decision, unanimous on this issue, was:

“A statute requires a driver to stay upon his own side of the highway and the law in this state is that a violation of a statute is negligence per se. Nevertheless, we have held that a failure to stay upon the right side of the road is not negligence per se if the offending driver went on the wrong side through no fault of his own. * * 255 Or at 306-307.

In Mennis v. Highland Trucking, Inc., 261 Or 233, 492 P2d 464 (1972), the defendant was not faced with an emergency. The defendant ivas driving a log truck and Avas on plaintiff’s side of the road Avhen he collided Avith plaintiff. The defendant Avas on the “Avrong side” because the road Avas narroAV and abruptly dropped off on the defendant’s side. We held the defendant was not as a matter of laAv negligent and this issue Avas properly submitted to the jury. In so holding, Ave stated: “Moreover, we have held that failure to drive on the right half of the road is not negligence per se if the driver was acting as a reasonably prudent person under the circumstances.”

Because excusing statutory violations solely in instances of emergency is illogical, Ave Avonld be constantly urged and tempted to circumvent the rule. We continue to consider fault as the basis for imposing liability in automobile litigation. Courts are extremely loath to find a party who has acted reasonably to be negligent or contributorily negligent merely because the party acted contrary to a statute. Because of this ingrained reaction the courts are constantly being asked to create exceptions to the statutory negligence per se rule and the courts are doing so to avoid the seeming harshness of the negligence per se doctrine.

Our experience with this problem extends to cases involving statutory violations other than driving on the wrong side of the road.

In McConnell v. Herron, 240 Or 486, 402 P2d 726 (1965), we overruled Nettleton v. James, 212 Or 375, 319 P2d 879 (1958), and held that even though a truck operator was driving with brakes that did not comply with the statute, he was not necessarily negligent. In Dimick v. Linnell, 240 Or 509, 402 P2d 734 (1965), we were called upon to consider the so-called “justifiable violation” exception to relieve a pedestrian from contributory negligence who was walking on the “wrong side” of the road. We did not reject the exception, but found it inapplicable under the facts.

There is no rational basis by which we can hold that in certain instances violation of a statute is not negligence per se if the jury could find the party was acting reasonably, but in other instances violation of a statute is negligence per se regardless of whether the party was acting reasonably.

We consider the present state of the law to be that if a party is in violation of a motor vehicle statute, such a party is negligent as a matter of law unless such party introduces evidence from which the trier of fact could find that the party was acting as a reasonably prudent person under the circumstances. We so hold regardless of whether the circumstances do or do not include facts which the law regards as an emergency.

Another way of stating this is that the violation of a motor vehicle statute creates a presumption of negligence. When the evidence establishes that a party has violated a motor vehicle statute, such a party has the burden of producing evidence that, nevertheless, he was acting reasonably. Without such evidence the party is negligent as a matter of law. Raz v. Mills, 231 Or 220, 226-227, 372 P2d 955 (1962).

If the party having such burden produces no evidence of reasonable conduct or the court finds the evidence produced is insufficient to prove reasonable conduct, the court must find the party negligent as a matter of law. If the party produces evidence which the court determines raises a question of fact whether the party acted reasonably, despite violation of the statute, then, the question of the party’s negligence is for the jury.

On occasion it will be difficult to decide whether to submit the issue to the jury. However, the court’s task in such a case is identical to that imposed in the administration of a judicially set standard of conduct in which the court must also decide whether to submit the issue to the jury or find negligence as a matter of law. For example, in railroad crossing cases this court has set a judicial standard that a train on a crossing is itself adequate warning of its presence and the railroad has no duty to provide further warning, such as a flagman. We have alleviated the sometimes harsh effects of that rule, however, by creating an exception that if a reasonably prudent driver might not observe the train on the crossing, then, the railroad does have a duty to warn the driver of the presence of the train. Finn v. Spokane, P. & S. Ry. Co., 189 Or 126, 214 P2d 354 (1950), 194 Or 288, 241 P2d 876 (1952). In such cases the court must decide whether there is evidence from which a jury could find that a reasonably prudent person might not observe the train unless the railroad provided some warning.

The jury in this case could have found that the defendant acted as. a reasonably prudent person although his vehicle may have proceeded over the, dividing line.' For this reason the instruction was, not erroneous in substance.^②

The plaintiff also'excepted to the' trial coiirt’s instruction: “Then another'statute of this State provides that drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving; to. the other at least one half of the main traveled portion of the roadway ás nearly as possible.”

. • '.The instruction was not applicable to this, case because there was a line dividing the street into lanes and the plaintiff’s lane was wider than the defendant’s!

\ . Wé hold, however, that giving this inapplicable instruction was' not prejudicial error. Immediately pnQr to the giving of the quoted instruction, the' trial court correctly instructed that the statute requires fhat when a street is divided into lanes the driver is required to drive in his own lane. Defendant’s counsel never contended in his argument to the jury that his client was entitled by statute to cross the dividing line and use one-half of the highway.

Affirmed.

Bryson, J., concurs in the result.

① The present case may be classified as an emergency case because the defendant was suddenly confronted with the plaintiff riding on the center line leaning toward the defendant and the defendant reacted without time for considered judgment. We prefer, however, to treat it more broadly.

② No objection was made to the form of the instruction and we, therefore, do not pass upon that issue.