Maneff v. Lamer , 148 Or. 455 ( 1934 )

I concur in the opinion of the majority of the court that it was erroneous to instruct the jury that the defendant under the circumstances recited in the instruction which was given had the right of way. The instruction which was refused was too broad in stating that the defendant would be negligent under the facts as therein stated. In my opinion the correct rule is stated in the following language from the case of Merrifield v. HoffbergerCo., 147 Md. 134 (127 A. 500):

"The appellant in this case had the right of way, which meant that if, while proceeding, his course and that of the defendant's truck would bring them in contact at a given point in the pedestrian's way, he was not required to stop or diverge from his course so as to give the truck the right of way, but on the contrary, under such conditions, it was the duty of the driver of the truck to stop or diverge so as to give him the right of way, and the appellant had the right to assume that this course would be followed by the driver of the truck, not alone because the consequence resulting from a failure of the driver of the truck to do this would be extremely serious, but for the further and controlling reason that the statute required the driver to do so."

See also: Clarkson v. Ley, 106 N.J. Law 380 (148 A. 745);Rolfs v. Mullins, 179 Iowa 1223 (162 N.W. 783); and Berry on Automobiles (6th Ed.), § 357, page 318.

The mere fact that a pedestrian might be in the pedestrian lane when the automobile struck him, regardless of how the pedestrian came into the intersection, would not in all instances constitute negligence on the part of the driver. Many mishaps involving automobiles and pedestrians at intersections occur because children, or even adults, suddenly dart in front of a motor vehicle at a time when, regardless of the care exercised by the driver of the vehicle, a collision could not by him be avoided. Nevertheless under the requested instruction the motorist would be, as a matter of law, negligent, because the pedestrian was injured while in the intersection. The evil of this part of the instruction, i.e., as to the negligence of the motorist, is not cured by the later insertion therein of the direction by the court that "your verdict must be for the plaintiff" if the jury should find that defendant's negligence was the proximate cause of plaintiff's injuries and the plaintiff was free from negligence. Since no transcript of the testimony is before us, we are dealing with an abstract proposition of law and cannot apply the requested instruction to the facts in this particular case.