Weitzel v. Wingard , 274 Or. 185 ( 1976 )

HOLMAN, J.

This appeal involves two actions for damages arising out of a single automobile accident. Anna M. Weit-zel filed an action for personal injuries and her husband filed one for loss of consortium. The cases were consolidated for both trial and appeal. A judgment for defendant pursuant to a jury verdict was entered in each case.

Defendant’s vehicle crossed the center line of a street and hit a vehicle which Mrs. Weitzel was operating in the opposite direction. Plaintiffs’ first assignment of error is the trial court’s failure to rule as a matter of law that defendant was negligent in operating his vehicle on the wrong side of the highway in violation of ORS 483.302(1). Defendant testified as follows:

"Q Tell me just how the accident happened.

"A Well, I was driving south on Willamette Street, and I wasn’t speeding. I wasn’t doing, I know, no more than 30 miles an hour. And as I was driving down the street, something just went out from underneath the car. Just — it was a shock. And the only thing I could do is I went to the right, hit the curb in the right-hand lane and went across the road in front of an oncoming car, which was the plaintiffs. All I could do was hold on and ride it out.

"Q What was it that broke loose?

"A The rear end of the car someplace. I don’t know. I’m not a mechanic. So, I couldn’t really explain the correct — what it would be. I wouldn’t want to venture a guess at it.

"Q What happened to the handling of the car when this broke loose?

"A Well, it was kind of erratic. Like I said, it went to the right, hit the curb and just took to the left (sic), and all I could do is hang on.

"Q Were you able to steer the car?

"A No, sir, I wasn’t.

"Q Were you able to slow it down or stop it?

"A No. I tried to, but it was impossible.

"Q Was there anything you could have done by steering to have missed the impact you had with plaintiff’s car?

"A No, sir.

"Q Did your car slow down at all after the things broke loose and you went out of control?

"A It did, because it hit — after things broke loose, things started dragging, and it did slow the car down, but to what extent of speed, I couldn’t really say.

"Q —did anything else happen as far as the brakes were concerned?

"A I couldn’t get any response from them after that broke loose.

"Q Did you just hang on the steering wheel or did you attempt to steer—

"A While I was hanging on, I was attempting to steer at the same time. I was trying to steer it and still hang on at the same time.

"Q Well, is it your version that you couldn’t turn, that the wheels would not turn?

"A They wouldn’t. They wouldn’t respond very well, because what was dragging underneath was more or less directing the car. I was trying to steer and hang on to the steering wheel at the same time and ride it out, and, as I recall, I couldn’t get any response to any particular direction it was going to go.”

Plaintiffs argue that because defendant made no effort to have his vehicle inspected to find out which part, if any, had malfunctioned underneath the vehicle, "there was no competent evidence” "to establish a reason for his [defendant’s] vehicle being in the wrong lane of traffic.” Plaintiffs further argue:

"The ability to determine what had in fact happened to defendant’s vehicle prior to the collision was solely with defendant. It appears unreasonable that a person involved in a head-on collision resulting in injuries and hospitalization of the other party would not at least check the vehicle later to determine what may have happened to cause him to lose control.”

After much vacillation, this court, in Barnum v. Williams, 264 Or 71, 78-79, 504 P2d 122 (1972), finally arrived at the following rule for such a situation:

"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. * * *.

"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 [citation omitted],

"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 one for the jury.”

In effect, plaintiffs contend that the trial court erred in failing to find that defendant’s evidence was insufficient as a matter of law to prove reasonable conduct in rebuttal of the presumption of negligence.

It is our opinion that the evidence raises a question of fact whether defendant, despite his violation of the statute, acted reasonably under the circumstances. Plaintiffs contend no question of fact is presented because defendant failed to offer evidence of the condition of his vehicle after the accident in verification of his testimony that his vehicle became uncontrollable due to defect. Such failure by defendant may make his testimony of defect less credible and raise inferences concerning his legal responsibility for the defect, but these are for the jury. His testimony was sufficient to justify a jury in finding that he ended up in the opposite lane of travel without any fault on his part in operating his vehicle.

Had plaintiffs alleged the defendant was negligent in that he was operating his vehicle in violation of a statute requiring his vehicle to be in a specified condition (such as the condition of brakes) and had plaintiffs proved or defendant admitted the defect, defendant could not excuse such violation of the statute by evidence of the reasonable manner in which he operated his vehicle. In such a situation plaintiffs’ present contention would be valid.

We compared the situation in Barnum to a presumption of negligence which becomes conclusive in the absence of a legitimate excuse for the statutory violation, for we said:

"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. * *

The presumption becomes conclusive, in the absence of explanation, because the violation of a statute is involved.

In the present case defendant gave as an excuse for his being on the wrong side of the road the defective condition of his vehicle. This is an adequate excuse only if he was not at fault for its defective condition. The dissent treats defendant as if he had been operating a vehicle the condition of which was in violation of a statute; it, in effect, places a presumption of negligence upon defendant for the defective condition of his vehicle which becomes conclusive in the absence of his testimony that he took due care of it.

Because the actual allegation of negligence against defendant concerns his being on the wrong side of the road, which involves the violation of a statute, the dissent, in evaluating his excuse, attaches the same level of responsibility upon defendant for the defective condition of his vehicle as it does to his being on the wrong side of the road, despite the condition of his vehicle not being claimed to have violated a statute. The dissent never explains how the level of legal responsibility for violation of the statute requiring one to stay on his own side of the road transports itself over to his non-statutory common law responsibility for the condition of his vehicle.

We do not believe the dissent is contending that anyone who is charged with common law negligence for driving a vehicle with a non-statutory defect is negligent as a matter of law if he admits the defect and denies his negligence but fails to testify concerning his diligence in the care of his vehicle. If the dissent is not contending this, a legitimate question, then, is, "If a person is not negligent as a matter of law, in the absence of an explanation, for an admitted non-statutory defect in his vehicle when directly charged with such negligence, why does he so become when his responsibility for the defectiveness of his vehicle comes into question as his excuse for being on the wrong side of the road?” It is no answer to say that his being on the wrong side of the road is a violation of a statutory duty. Initially in question is defendant’s responsibility for the condition of his vehicle, and it is only after resolving this question that a decision can be made regarding whether his excuse for being on the wrong side of the road is adequate.¹

In an attempt to bolster up its rationale, the dissent quotes language from cases from other jurisdictions and from 2 Blashfield, Automobile Law and Practice 459-60, § 107.3, which states the common law rule to the effect that the owner or driver of a motor vehicle owes a duty to others of reasonable care to discover defects in his vehicle. Not one of the cases concerns a situation in which the defendant’s responsibility for the condition of his vehicle was not submitted to a jury or in which he was adjudicated to be negligent as a matter of law. From this language the dissent seems to conclude that unless the owner or driver comes forward with evidence of his care, he is conclusively presumed to have been negligently responsible for the vehicle’s defective condition. While an inference may arise from defendant’s silence and from his operation of the vehicle that defendant is legally responsible for the vehicle’s defective condition, which inference makes a jury question of defendant’s common law responsibility for the vehicle’s condition without the necessity of evidence of his actual negligence in its care, the inference is merely a device which takes the case to the jury and is not conclusive of his legal responsibility therefor.

The dissent fails to appreciate that before it can be decided whether defendant has tendered a sufficient excuse for being on the wrong side of the road, it must be determined whether he is responsible for the defective condition of his vehicle and that that determination is independent of and in no manner affected by the fact that he was on the- wrong side of the road. The initial determination of defendant’s responsibility for the condition of his vehicle, therefore, has to be one for the jury.

The only other assignment of error is the court’s giving of an emergency instruction which plaintiffs claim was prejudicial to defendant because his testimony was capable only of the interpretation that he had no choice in whether or not his vehicle ended up on the wrong side of the street. Assuming that the instruction was improper, if applied to defendant, the giving of it was not reversible error because plaintiffs did not point out in their exception, which was general only, the defect of which they now complain. The exception was:

"* * * the plaintiffs except * * * to the giving of the emergency instruction in connection with the proceedings.”

In addition, the giving of the emergency instruction was not error because it was applicable to Mrs. Weitzel, the operator of the other vehicle. She was charged with contributory negligence in failing to steer her vehicle in a manner so as to avoid defendant when he appeared suddenly on her side of the street. She was met with a genuine emergency to which the instruction would be applicable. The instruction was given in neutral terms and was not specifically applied to either Mrs. Weitzel or defendant but only to situations in which the facts justified its application. It was applicable to Mrs. Weitzel as she was the only one presented with an emergency where she might not have made "the wisest choice.”

The judgment of the trial court is affirmed.

1 The dissent sees the presumption of negligence which arises from being on the wrong side of the road as applying not only to the manner in which the defendant operated his vehicle, but to the care he took of it as well. On the other hand, the majority sees the presumption of negligence which arises from being on the wrong side of the road as applying to the operation of his vehicle (it is an operational statute that has been violated) but not to the vehicle’s care, which the majority believes is determined by the usual rules applicable to non-statutory defects of vehicles.