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Barnum v. Williams

December 14, 1972


Appeal from Circuit Court, Multnomah County. Patrick E. Dooley, Judge.

Vincent G. Ierulli, Portland, argued the cause and filed a brief for appellant.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and Gordon Moore, Portland.

Denecke, Justice. O'Connell, Chief Justice, and Holman and Howell, Justices. Bryson, Justice, concurs in the result. McAllister, Justice, dissenting.


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 his 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 was not intended to eliminate the element of fault from the law of torts." McConnell v. Herron, 240 Or 486, 491, 402 P2d 726 (1965).

Early in the development of the tort law of motor vehicles we stated the doctrine that violation of a motor vehicle operation statute is negligence per se. At the same time, however, we engrafted the principle of fault into this doctrine. Marshall v. Olson, 102 Or 502, 511-513, 202 P 736 (1922). In the Marshall case the jury could have found that the defendant turned in violation of a city ordinance. The court observed: "* * * [I]t would be unreasonable to maintain that a man would be culpably negligent under such circumstances, if he turned either to the right or to the left to avoid imminent danger of collision, when the peril could be escaped only by such action, and that, too, without injury to any one else: * * *." 102 Or at 512-513.

This line of reasoning was carried into cases in which one of the drivers went onto the "wrong" side of the road. One such case is Gum, Adm. v. Wooge, 211 Or 149, 158, 315 P2d 119 (1957), in which we said: "Furthermore, the statute is not considered violated in instances when the driver, acting as a reasonably prudent person, turns to the left to avoid a collision with an approaching vehicle traveling in its wrong lane. * * *."

Most, but not all, of our decisions on this issue have dealt with a situation in which the driver suddenly was 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 his 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.*fn1

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 ...

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