Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge.
Edward H. Warren, Portland, argued the cause for appellant. With him on the briefs were Hershiser, Mitchell & Warren, Portland.
Marvin S. Nepom, Portland, argued the cause for respondent. With him on the brief was Lester L. Rawls, Portland.
Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.
Plaintiff brought this action under the Oregon Tort Claims Act*fn1 against defendant Oregon State Highway Commission and others to recover damages for personal injuries received in a two-car collision allegedly caused by faulty electric traffic control signals.
Trial was had before a jury which returned a verdict against defendant Oregon State Highway Commission and in favor of plaintiff in the amount of $50,000. A judgment was entered on such verdict. Defendant Commission appeals.
Defendant Gulf & Western Industries, Inc., manufacturers of the signals, and defendant Don E. Seawood, operator of the other car involved, were allowed judgments of involuntary nonsuit and are not parties in this appeal.
Three questions are presented on appeal:
I. Did plaintiff comply with ORS 30.275 in presenting his claim?
II. Was any substantial evidence produced on trial from which the jury could reasonably determine that the defendant knew or should have known that the signal malfunctioned?
III. Was any substantial evidence produced on trial from which the jury could reasonably determine that defendant was negligent in failing to properly repair the traffic control signal at the intersection after receiving complaints prior to May 26, 1969, that the signal malfunctioned?
The essential facts are as follows:
State Road 217 and Highway 99W intersect at approximately right angles on the easterly side of the city of Tigard, Washington County, Oregon. The intersection is controlled by five three-phase, green, red and amber electrically operated traffic control signals.
On May 26, 1969, at approximately 6:24 a.m., plaintiff was operating his vehicle in a southerly direction on State Road 217 on his way to work. Defendant Seawood was operating his vehicle in a westerly direction on Highway 99W at the place where the two thoroughfares intersect. A collision occurred within the intersection from which accident plaintiff sustained his claimed injuries.
Plaintiff was hospitalized on May 26, 1969, and remained hospitalized until his discharge on July 13, 1969.
Clayton D. Brown, a Tigard police officer, arrived at the scene of the accident at 6:27 a.m. Shortly after the officer arrived a bystander called the officer's attention to the malfunctioning of the traffic control signals at the intersection -- they were showing "green" simultaneously from two conflicting directions.
At the scene of the accident both plaintiff and defendant Seawood claimed to have had the green light.
Officer Brown remained at the accident scene approximately 45 minutes and observed between 12 to 14 cycles of the light, during which time the functioning was erratic. However before he left the scene the lights spontaneously commenced to function properly. He testified that on two previous occasions he had observed malfunctioning of the lights and reported the malfunctions. On one occasion he reported the condition to the State Police. On the second occasion he reported it to the State Highway Department. The first of the two occasions occurred in late winter of 1968, the other in the early months of 1969, prior to the May 26 accident.
Officer Brown testified that in his observation the signal malfunctioned when the conditions were wet or damp. The two reported previous malfunctions did not, however, involve "green" in two different ...