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Anderson v. White

March 1, 1973

ANDERSON, APPELLANT,
v.
WHITE ET UX, RESPONDENTS



Appeal from Circuit Court, Harney County. Jeff D. Dorroh, Judge.

E. Richard Bodyfelt, Portland, argued the cause for appellant. With him on the briefs were Edwin J. Peterson, and Tooze, Kerr & Peterson, Portland.

James P. Wall, Portland, argued the cause for respondents. With him on the brief were Thomas E. Cooney, and Morrison, Bailey, Dunn, Cohen & Miller, Portland.

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

Bryson

This is an action to recover damages for personal injuries incurred by plaintiff in an automobile accident. Plaintiff appeals from a judgment entered pursuant to a jury verdict for defendants, contending that there was no evidence on which to base a contributory negligence instruction concerning the use of warning flares or other signal devices. We hold that there was sufficient evidence to support the instruction and affirm the trial court.

At 9 p.m. on the evening of September 16, 1970, plaintiff and a passenger, driving eastbound on

Highway 20 approximately 23 miles west of Burns, Oregon, observed a pickup truck stalled in the eastbound lane of traffic without any lights burning. Highway 20 at this point consists of two 16-foot traffic lanes with four-foot paved shoulders. Plaintiff slowed and was motioned safely past the vehicle on the left, but he decided to return to render assistance.

The electrical system in the stalled pickup truck had failed. Plaintiff loaned a flashlight to the three men attending the truck and parked his car behind the truck with the four-way emergency lights flashing. The men worked on the truck for about 30 minutes but were unable to locate the defect. It was decided that plaintiff's car, a small Volkswagen, could best be of help by towing the heavier truck to a roadway turn-out 250 feet to the east. Plaintiff moved his car in front of the truck and, while standing between the vehicles, began to connect a chain to his rear bumper.

At that time, Mr. and Mrs. James Lemieux were traveling west on Highway 20. When they saw the two vehicles in the eastbound traffic lane, they stopped their vehicle in the westbound lane with their four-way emergency lights flashing and offered assistance. The Lemieux vehicle was equipped with flares but they were located underneath some luggage at that time. Mr. Lemieux testified that the men attending the disabled truck did not ask for any flashlights or flares and that he could not remember whether he told them that he had these items. After pausing for about 30 seconds, Mrs. Lemieux began to drive on. After moving about four feet, Mr. and Mrs. Lemieux observed defendants' car at the top of a hill to the west, proceeding easterly. The headlights of defendants' car were on high beam and Mrs. Lemieux began to alternately

flash her headlights from high to low beam. Mr. and Mrs. Lemieux had rolled about 50 feet past the stalled truck when defendants' vehicle passed them heading east, toward the stalled truck.

Mrs. White was driving defendants' vehicle at an approximate speed of 70 miles per hour. Mrs. White testified that as she approached the scene she saw no light of any kind. She saw the rear of the pickup truck but was unable to brake her vehicle in time to avoid a collision. Prior to the impact, one of the men near the truck shouted that the oncoming car was not stopping, but plaintiff, who was crouched between the vehicles with his back to the truck, was unable to escape. Defendants' vehicle collided with the truck, pushing it into plaintiff's car. Plaintiff was pinned between the vehicles and sustained severe injuries. Plaintiff filed this action for damages and defendants charged plaintiff with contributory negligence in failing to keep a ...


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