Appeal from Circuit Court, Lane County. F. Gordon Cottrell, Judge.
Paul D. Clayton, Eugene, argued the cause for appellant, cross-respondent. With him on the briefs were Luvaas, Cobb, Richards & Fraser and Douglas L. McCool.
Richard Bryson, Eugene, argued the cause for respondents Bostwick and Ryan. On the brief were Bryson & Robert and Calkins & Calkins.
Darst B. Atherly of Thwing, Atherly & Butler, Eugene, argued the cause and filed a brief for respondent Espelund.
Wm. G. Wheatley of Jaqua, Wheatley & Gardner, Eugene, argued the cause and filed a brief for respondents Mitchell Bros. Truck Lines, Plumley and Schamburger.
Alonzo P. Stiner, Portland, argued the cause for respondent, cross-appellant Purdy. With him on the briefs were Gary W. Lindberg and Veatch, Lovett & Stiner, Portland, and Gerald D. Gilbert, Eugene.
In Banc. McAllister, J. Denecke, J., specially concurring. Tongue, J., dissenting in part.
This is an action for damages for personal injuries resulting from an automobile accident. The trial court granted a nonsuit in favor of defendant Espelund
and the jury returned a verdict against the defendant Purdy in the amount of $236,809.28, and found in favor of the defendants Mitchell Bros. Truck Lines, Plumley, Schamburger, Bostwick and Ryan. Plaintiff appeals from the judgment of nonsuit in favor of Espelund and from the judgment on the verdict in favor of the other defendants except Purdy. Defendant Purdy cross-appeals from the judgment against him.
The accident took place on Highway 58 near Dexter Lake, between Oakridge and Eugene, where the two-lane highway runs east and west. On the evening of October 31, 1970, a loaded lumber truck belonging to defendant Mitchell Bros. overturned on the south side of the highway. The overturned truck came to rest in a field beside the highway, completely off the pavement and the shoulder. The truck driver notified defendant Schamburger of the accident. Schamburger, who was employed by Mitchell Bros. as its Safety Director, went to the scene early the next morning to conduct a salvage operation. He was accompanied by defendant Plumley, a safety supervisor employed by Mitchell Bros.
Schamburger, who was in charge of the salvage operation, determined that the truck should be unloaded and then be moved with a large crane. He arranged to have a large crane sent to the scene from Portland and then hired the defendant Bostwick, a local trucker, who owned a truck with a crane, to furnish and operate his truck in taking the bundles of lumber off the overturned truck. Defendant Ryan, a friend of Bostwick who had driven Bostwick's truck on prior occasions, accompanied Bostwick to the scene of the accident.
When they arrived at the scene, Bostwick's
truck was driven off the highway to a position near the overturned truck, and the unloading operations began. Schamburger and Plumley worked on top of the overturned load, setting cables around the bundles of lumber. Ryan drove Bostwick's truck, while Bostwick worked on top of the truck operating the self-loading device on the boom. After two bundles of lumber were removed, it was decided that Bostwick's truck should be turned around. Bostwick got down off the top of the truck, and Ryan backed the truck in a westerly direction parallel to the highway until he came to a private drive. Turning there, he drove the truck directly across the highway into a private road which entered the highway from the north at a point about 200 feet west of the overturned Mitchell Bros. truck. He stopped there to wait for traffic on the highway to pass so that he could back into the highway and turn around. The truck was then facing north, away from the highway, with the boom extending to the rear of the truck toward the highway. Estimates varied as to how near the truck was to the pavement. The private road in which the truck was stopped sloped down away from the highway. Ryan, instead of using the brakes to keep the truck from rolling down the incline, placed the truck in reverse gear and used the clutch to keep the truck from either rolling down the hill or backing onto the highway. This caused the truck to move back and forth slightly from time to time while Ryan waited for the traffic on the highway to pass.
While Ryan, in Bostwick's truck, waited for a break in the traffic, defendants Espelund and Purdy drove toward the scene from the east with Espelund's vehicle in the lead. The highway was straight and visibility was good. Espelund and Purdy could see
the scene of the salvage operation after they came over the crest of a hill about a third of a mile to the east. As Espelund drove down the hill he noticed the overturned truck beside the highway and began to slow down without using his brakes. Purdy, who had been following Espelund at a distance of five or six car lengths and a speed of 50 to 55 miles an hour, noticed after he crested the hill that Espelund was slowing down. Purdy accordingly began to reduce his own speed, using his brakes lightly. Espelund, having slowed down considerably, passed the overturned truck and the road where the Bostwick truck was sitting. Following Espelund, Purdy passed the overturned lumber truck and was approaching the Bostwick truck when, according to his testimony, he saw the truck suddenly move toward the highway. Alarmed, Purdy quickly put on his brakes. He testified:
"* * * about this time I saw this red logging truck move toward the highway, and it scared me to death, and I just hit my brake * * * slammed on my brake * * *."
Purdy's car began to skid, and slid across the highway into the eastbound lane of traffic where it collided, about 250 feet west of the Bostwick truck, with the eastbound car in which plaintiff was riding. Plaintiff's husband, who was driving, had no warning of danger until he saw Purdy's car, already in the eastbound lane, sliding sideways toward him. Espelund, in the meantime, heard the squeal of Purdy's tires, looked in his rearview mirror and saw Purdy's car sliding, and accelerated quickly. He was some distance down the highway by the time of the collision.
There is conflicting evidence as to whether the
Bostwick truck actually moved. Purdy testified that he saw it move, while other witnesses testified that the truck was still but the boom was swinging, while still others testified that they saw no movement at all. In any event, the truck did not move onto the highway, but remained at all times in the private roadway.
Plaintiff's case against all the defendants, except Espelund, who was granted a judgment of nonsuit, was submitted to the jury. The jury held Purdy liable, and exonerated all the other defendants.
Plaintiff claims the trial court erred in granting defendant Espelund's motion for an involuntary nonsuit, and argues that the question of Espelund's negligence should have gone to the jury. Plaintiff charged that Espelund negligently:
"(1) Slowed his vehicle without giving any plainly visible proper signal of his intent to do so.
"(2) Failed to keep and maintain a proper lookout for other vehicles which were on or entering upon said highway.
"(3) Slowed his vehicle suddenly without first ascertaining that the movement could be made in safety."
We have found no evidence that Espelund was in any way negligent in slowing his vehicle. He testified that he reduced his speed gradually as he approached the overturned truck and the Bostwick truck. Purdy's testimony is in accord, and also shows that Purdy was aware of Espelund's decrease in speed. Espelund evidently gave no signal of his intention to slow down, but the applicable statute requires a signal of such an intention only in the case of a sudden decrease in speed. ORS 483.126 (3). There is no evidence that
Espelund slowed his vehicle suddenly or of any other circumstance which would have required him to give a signal.
There is evidence that as Espelund passed the overturned truck he was looking toward the salvage scene, and that he did not check his rear view mirror between the time he came over the top of the hill and the time he heard Purdy's attempt to stop. The jury could have found that he was keeping an inadequate lookout. There is, however, no evidence that his failure to keep a proper lookout played any part in causing the accident. There is nothing to suggest that the position of his vehicle either caused Purdy to slam on his brakes, or interfered in any way with any attempt by Purdy or by plaintiff's husband to avoid the collision. The trial court ...