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Welcome v. Nelson

March 23, 1973

WELCOME, APPELLANT,
v.
NELSON ET AL, RESPONDENTS



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

Donald H. Joyce, Portland, argued the cause and filed a brief for appellant.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and James B. O'Hanlon, Portland.

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

Denecke

While the plaintiff was walking across a street he violently came into contact with defendants' car. In the forthcoming jury action the trial court granted defendants' motion for a directed verdict. Plaintiff appeals.

The basis for the directed verdict was that plaintiff was contributorily negligent as a matter of law in failing to keep a lookout. The occurrence was on October 18 at about 5:00 p.m., PDT, while it was still light. It was dry. Plaintiff stepped from the curb and started to cross the street; however, there was traffic, so he stepped back and waited. The traffic started to clear but a car was coming from plaintiff's left. When that car was past, plaintiff looked to his left, saw nothing, looked to his right, saw nothing, and started across and was starting to turn his head and look left again. He took four steps and traversed about 12 feet angling toward his left and then it happened. Plaintiff did not see defendants' car which came from plaintiff's left. Whether plaintiff was in an unmarked crosswalk is in issue but is irrelevant to the issue of lookout.

The jury could have found that a car was parked about 15 feet to plaintiff's left on plaintiff's side of the street. This prevented plaintiff from seeing anything immediately behind the parked car. However, plaintiff testified he could see left in the travel lane about three blocks. The street is 42 feet wide.

The defendant Gordon Nelson came onto the

street two or three blocks from the collision. The jury could have found he was traveling slightly more than 30 miles per hour, the designated speed. He was traveling next to the center line and did not change his course. He did not see the plaintiff at the time of the collision but heard a crash on the side of his car.

The defendants' car suffered a dent where the right front door meets the fender and the antenna near that spot was broken. There was no damage to the front of defendants' car. A witness who was driving in the opposite direction from defendants testified that plaintiff ran into the side of defendants' car. The plaintiff did not know what part of the car he contacted.

We regard this as a close question; however, we have come to the conclusion that the trial court was correct.

In cases involving a collision between a train and a vehicle at a railroad crossing, we have held that if the train was visible, the driver was guilty of contributory negligence as a matter of law because either he did not look or he did not see what any reasonably prudent man would have seen. Olds v. Hines, 95 Or 580, 187 P 586, ...


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