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Leite v. Sambo's Restaurants Inc.

February 15, 1973

LEITE, APPELLANT,
v.
SAMBO'S RESTAURANTS, INC. ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. John C. Beatty, Jr., Judge.

William F. Schulte, Portland, argued the cause for appellant. With him on the briefs was John W. Brugman, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent Sambo's Restaurants, Inc. A. Thomas Cavanaugh, Portland, argued the cause for respondents Nesbitt. With them on the brief were Schouboe & Cavanaugh, P.C., Kenneth E. Roberts, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

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

Bryson

This is an action for personal injuries resulting from an automobile-pedestrian collision. A jury returned a verdict for defendants, and plaintiff appeals. We affirm.

The accident occurred during daylight on a sidewalk adjacent to Sambo's Restaurant, located on the northeast corner of 23rd and West Burnside Streets in Portland, Oregon. The sidewalk at this location was also a driveway exit which allowed vehicles in Sambo's parking lot to enter Burnside Street. Plaintiff testified that while he was walking on the sidewalk a vehicle operated by defendant Billy Ann Nesbitt emerged from the parking lot and pushed him off the curb where he fell. The driver of the vehicle, employed by Sambo's Restaurants, Inc. (partly owned by defendant William G. Nesbitt), testified that she drove up to the sidewalk, checked for pedestrians, and proceeded onto the sidewalk, intending to make a left turn onto Burnside Street. She waited with her car across the sidewalk until she had an opportunity to turn east on Burnside Street; she then glanced to her right to check the traffic and observed plaintiff at the right front fender of her car with his hands in the air, falling backwards into the street. She felt no impact with plaintiff and testified that her car rolled slightly (about a foot) when she first observed plaintiff.

Wilbur Williams, a customer in the restaurant with a clear view of the scene at a short distance, testified that plaintiff was not walking in a straight line and was swaying slightly as he approached the driveway. He testified that when plaintiff approached the right side of the car he went backwards, caught his foot and fell into the street. According to Williams, the car was not in motion and never came in contact with plaintiff's person.

Plaintiff assigns as error the failure of the trial court to instruct the jury that defendant Billy Ann Nesbitt had been negligent as a matter of law for failing

to maintain and exercise a proper lookout. Plaintiff relies primarily on ORS 483.126 (1)*fn1 and 483.222*fn2 and cases stating the rule that where there is a duty to look, a failure to observe that which is plainly visible is negligence. Plaintiff argues that plaintiff was clearly visible and that the driver of the car was negligent in failing to see a pedestrian as required by the cited statutes.

Since the jury found for defendants, we must view the evidence in a light most favorable to defendants. McPherson v. Cochran, 243 Or 399, 401, 414 P2d 321, 322 (1966). There was evidence from which the jury could find that at the time plaintiff fell defendants' vehicle was already across the sidewalk and had been sitting there awaiting vehicular traffic to clear so it could enter the main traveled portion of the street. In such a situation it would be a question of fact for the jury whether the operator of the vehicle, in the exercise of reasonable care, should keep watching ...


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