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Freund v. Debuse

February 15, 1973

FREUND, APPELLANT,
v.
DEBUSE, RESPONDENT



Appeal from Circuit Court, Multnomah County. Alfred T. Sulmonetti, Judge.

Raymond J. Conboy, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison and Brian L. Welch, Portland.

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

Denecke, Justice. O'Connell, Chief Justice, and Holman, Howell and Bryson, Justices. McAllister, Justice, dissenting.

Denecke

The plaintiff alleged he was injured when the car he was driving was struck in the rear by defendant's pickup. The defendant testified the collision occurred because his brakes unexpectedly failed. The jury returned a verdict for the defendant and plaintiff appeals.

The plaintiff contends the trial court erred in failing to instruct the jury that the defendant was liable. The basis of plaintiff's motion was that the defendant was negligent per se because his brakes were not "adequate to control the movement of and to stop and hold such [his] vehicle" and his brakes were not "maintained in good working order," all in violation of ORS 483.444. The defendant's testimony was that after the collision he "tore apart" his wheel and found a broken brake drum which was the cause of the brake failure.

Just weeks ago in Barnum v. Williams, 264 Or 71, 504 P2d 122 (1972), we expressed the difficulty this court has had in the application of the negligence per se doctrine. The Barnum case involved an "operational" motor vehicle statute, driving on the "wrong

side" of the road. We held "that if a party is in violation of a motor vehicle statute, such a party is negligent as a mater 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." 264 Or at 78. The issue here is whether this rule also should be applied to violations of motor vehicle equipment statutes. We hold it should.

Initially, the law of Oregon was that violation of a statute setting the standard required for motor vehicle equipment was negligence per se. We stated that it was negligence per se although the violator might have acted as a reasonably prudent person. Nettleton v. James, 212 Or 375, 386, 319 P2d 879 (1958). In the same case, however, we stated that if the violation of the equipment statute was because of a "latent defect" the operator might not be liable.

In McConnell v. Herron, 240 Or 486, 493, 402 P2d 726 (1965), in which the defendant had defective brakes, we departed from the strict negligence per se doctrine. 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. * * *.

"Accordingly, we apply to equipment defects the same rule we have applied in the past to operational errors. Liability in both situations is based upon fault rather than upon a ...


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