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Gomez v. Flint

December 14, 1972

GOMEZ, APPELLANT,
v.
FLINT, RESPONDENT



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

Tony Pizzuti, Portland, argued the cause for appellant. With him on the brief were Pizzuti, Mautz & Ireland, Portland.

James H. Clarke, Portland, argued the cause for respondent. With him on the brief were McColloch, Dezendorf, Spears & Lubersky and Robert E. Maloney, Jr., Portland.

In Banc. Denecke, J.

Denecke

The plaintiff was a passenger in an automobile and was injured when the automobile collided with defendant's automobile at an intersection. In the forthcoming injury action the jury returned a verdict for the defendant and plaintiff appeals.

The sole issue concerns the defense of contributory negligence.

This is another case in which the controversy is really not about the law, but about inferences permissible from the evidence.

The verdict was for the defendant; therefore, the evidence will be interpreted most favorably to the defendant.

The plaintiff was in the front seat of a Barracuda in which he was being driven home by a girl. The time was 2:30 a.m. The car was going about 35 to 40 miles per hour in a 35-mile zone. They approached an intersection controlled by a signal. The plaintiff watched the signal "continuously." The light turned yellow. The jury could have found the driver accelerated to about 50 to 55 miles per hour; however, the yellow light, which is on 3.6 seconds, turned to red when the car was two or three car lengths from the intersection. The defendant entered from the street

on plaintiff's right. A witness testified the defendant had the green light. The plaintiff's driver tried to swerve around defendant's car but failed and the collision occurred. Immediately after the accident, plaintiff's driver appeared to a witness to be under the influence of narcotics.

The trial court instructed on plaintiff's alleged contributory negligence:

"In connection with those charges of contributory negligence, I instruct you that, except in exceptional situations, a guest or a passenger in a vehicle is not required to keep a constant lookout for other vehicles upon the roadway. He is not supposed to be a backseat driver, in other words. However, if the driver is recklessly or carelessly driving into danger and the passenger has an opportunity to protest or to take other measures for his own ...


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