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Allen v. Shiroma

September 27, 1973

ALLEN, APPELLANT,
v.
SHIROMA, DEFENDANT, LEATHERS, RESPONDENT



Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge.

Bernard Jolles, Portland, argued the cause for appellant. With him on the briefs were Franklin, Bennett, DesBrisay & Jolles and Larry N. Sokol, Portland.

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

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

Denecke

In a personal injury action the trial court entered a judgment for the defendant Leathers despite a verdict against the defendant Leathers and for the defendant Shiroma. Plaintiff appeals only from the judgment for the defendant Leathers.

The sole issue is the extent of Mrs. Leathers' liability.

The circumstances leading up to plaintiff's injury are unusual. Vehicles driven by the two defendants,

Shiroma and Leathers, collided. The collision was not horrendous and the cars remained operable; however, some glass and debris did fall on the pavement. A jury could find the defendant Mrs. Leathers negligently caused the collision.

Plaintiff was in his car, waiting at a stop sign, when the collision occurred on the cross street in front of him. He stopped in his lane, got out and instructed Mrs. Leathers to move her car, which she did. Plaintiff put out flares and directed traffic. Plaintiff noticed his car was impeding traffic. He asked a young man, White, to move his car out of the way. White was too young to be licensed as a vehicle operator. He got in the car, lurched forward, struck another vehicle, veered across the street and struck plaintiff. Plaintiff was struck about 15 minutes after the initial collision.

Plaintiff contends the jury should decide whether Mrs. Leathers is liable for plaintiff's injuries because of her negligence in causing the initial collision.

Plaintiff's contention raises the issue examined at length in Mr. Chief Justice O'Connell's specially concurring opinion in Dewey v. A.F. Klaveness & Co., 233 Or 515, 519, 379 P2d 560 (1963), and evolved in Hills v. McGillvrey, 240 Or 476, 402 P2d 722 (1965); Mezyk v. National Repossessions, 241 Or 333, 405 P2d 840 (1965); Stewart v. Jefferson Plywood Co., 255 Or 603, 469 P2d 783 (1970); and Gunn v. Hi-C-Home, Inc., 260 Or 404, 490 P2d 999 (1971), among others. The questions are: By ...


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