Pozsgai v. Porter , 249 Or. 84 ( 1967 )

HOLMAN, J.

Plaintiff, a passenger in a motor vehicle, brought an action for damages for injuries occasioned by a collision between that vehicle and one operated by defendant. Prom a judgment entered on a jury verdict for defendant, plaintiff appealed.

Defendant was operating his vehicle in an easterly direction on Jennings Avenue in Clackamas County and stopped at its intersection with Oatfield Road. After stopping, defendant drove into the intersection at the speed of about five miles per hour and turned to the left in a northerly direction on Oatfield Road. While so doing, he claimed that his steering gear jammed in the turned position. He continued in a left curve out of the intersection, came back across Oatfield Road and collided with the left side of the vehicle in which plaintiff was riding as it was being operated in a southerly direction on the west side of Oatfield Road. Though defendant contends otherwise, it is our interpretation of the facts that they conclusively show that the vehicle in which plaintiff was riding was on its own side of the road when it was struck by defendant’s vehicle. From the point in his curve where he discovered he could not straighten the wheels of his vehicle to the point of the collision was about 45 feet. Defendant sought to account for his jammed steering gear by claiming he subsequently found a rock lodged in his steering mechanism which caused it to malfunction.

The principal assignments of error relate to the failure of the trial court in various ways to apply the doctrine of McConnell v. Herron, 240 Or 486, 402 P2d 726 (1965) to the circumstances of this case. Prior to McConnell the court rendered a series of opinions holding that one who failed to comply with statutory requirements relating to safety equipment was conclusively negligent. Failure to have adequate brakes, Nettleton v. James et al, 212 Or 375, 319 P2d 879 (1958); Daniels v. Riverview Dairy, 132 Or 549, 287 P 77 (1930); failure to have prescribed lights, Hickerson v. Jossey, 131 Or 612, 282 P 768 (1930). In McConnell we relaxed this rule slightly and held that such a violation could be excused if it was impossible to comply with the statute by the exercise of the highest degree of care. Because defendant violated ORS 483.302 requiring him to operate his vehicle on the right side of the road, plaintiff argues that the rule of McConnell applies and that defendant can be excused for his violation of the statute only if it was beyond his power to comply by the exercise of the highest degree of care.

At tlie same time the court was deciding the preMcConnell cases relating to safety equipment, it was deciding another series of cases concerning the violation of statutes relating to the manner in which vehicles are operated. These cases hold that an individual violating such a statute can excuse his conduct by showing that he could not or should not have complied by the exercise of reasonable care. Driving on the wrong side of the road, Raz v. Mills, 231 Or 220, 372 P2d 955 (1962); Gum, Adm. v. Wooge et al, 211 Or 149, 315 P2d 119 (1957); La Vigne v. Portland Traction Co., 179 Or 221, 170 P2d 709 (1946); illegal turning at intersection, Marshall v. Olson, 102 Or 502, 202 P 736 (1922). In McConnell we specifically expressed approval of those opinions holding that the violation of an operational statute could be excused by showing that it could not have been complied with by the exercise of reasonable care.

The present ease is identical to Raz v. Mills, supra. In both the present case and in Ras the defendant was on the wrong side of the highway and sought to excuse himself because of an emergency situation. In Ras, it was loss of control resulting from an attempt to avoid hitting a pedestrian who ran across the road, and in the present case it was loss of control resulting from a jammed steering mechanism. We believe McConnell should be limited in application to the violation of statutes relating to safety equipment. It was not our intention to make it more difficult to excuse the violation of an operational statute but, rather, to make it possible to excuse the violation of a statute requiring safety equipment.

The contention is made that theoretically there is no justification for the rule of McConnell which treats the violation of safety equipment statutes differently than the violation of operational statutes. Be that as it may, the violation here was that of an operational statute and we specifically approve the Raz rule in violations of that sort.

In the event of McConnell’s inapplicability, plaintiff claims that, nevertheless, defendant was negligent as a matter of law in not stopping his vehicle prior to its collision with the one in which she was riding and that no emergency situation which was the cause of the accident was created by the defective steering apparatus. She argues that defendant was travelling at only five miles per hour and covered a distance of 45 feet after he knew of his difficulty with the steering mechanism and therefore, as a matter of law, he had ample time within which to stop his vehicle after learning of his steering difficulties. Despite defendant’s testimony that he could have stopped his vehicle while going five miles per hour, this court is not prepared to say that defendant was negligent as a matter of law in not so stopping if, in fact, he was faced with such an unexpected situation as a jammed steering mechanism. It was a jury question whether under these circumstances, in the exercise of reasonable care, he should have stopped his vehicle before it entered the opposite side of the highway.

Plaintiff also contends that the court erred in giving the following instruction:

“* ® * Thus if you find that at the time and place of the accident, the defendant was not in control of his car solely by reason of a faulty steering apparatus, he would not be deemed guilty of negligence unless you find that in the exercise of reasonable care he knew or should have known that the steering apparatus was faulty.

“In this connection you will use the standard of the reasonably prudent person which I have already instructed you upon. In other words, if you find that at the time and place of the accident, the defendant acted as a reasonably prudent person would act under the same or similar circumstances and without any negligence on his part lost control of his automobile by reason of a faulty steering mechanism, then he would not be deemed guilty of negligence.”

Plaintiff argues that “It permitted the jury to find the defendant free from negligence, and therefore bring in a verdict for defendant, from the jury’s determination of this single fact that the defendant did not know the steering apparatus was faulty.” Plaintiff’s assignment of error is not well taken. The scope of the instruction is limited to where the loss of control was solely by reason of the faulty steering gear. Where the faulty steering apparatus was the sole reason defendant lost control and was on the wrong side of the road, and he was not negligent in relation to the faulty apparatus, the instruction correctly stated the law.

The judgment of the trial court is affirmed.