Miller v. Harder , 240 Or. 418 ( 1965 )

SLOAN, J.

Defendant Masson, an employee of the other two defendants, drove a truck belonging to the latter into the back end of a car in which plaintiff was riding. Plaintiff brought this action, but defendants prevailed by a jury verdict. Plaintiff appeals. She claims that the trial court should not have refused to direct a verdict in her favor.

The facts are similar to those reported in Lehr v. Gresham Berry Growers et al, 1962, 231 Or 202, 372 P2d 488. Plaintiff relies on that case to sustain her contention.

In the instant case plaintiff was riding in a car driven by a Mrs. Rusher along Grand avenue in Portland. Grand avenue is a three-lane one-way street. At the intersection of Grand and Weidler was a traffic light which controlled the flow of traffic at the intersection. According to Mrs. Rusher’s testimony the traffic light changed from green to yellow as she approached the intersection and she brought 'her ear to a gradual stop. Masson, following about one car length behind, collided with the Rusher car.

Masson testified that the light changed just as the Rusher car was entering the intersection. He stated that the Rusher car proceeded into the intersection a few feet before stopping. He explained that this caused him to believe that the car was not going to stop but was going through the intersection. Instead of that, he claimed, the car stopped suddenly and that this action of the Rusher car caused him to collide with it. Plaintiff’s motion for a directed verdict requires that defendants’ evidence be taken as true. Defendants argue that it was for the jury to decide if Masson was negligent under the circumstances.

We have concluded that Lehr v. Gresham Berry Growers, et al, supra, must be overruled. We will not reargue the merits of the case. The case has become, however, a matter of much concern to this court, and we are sure, of greater concern to the trial practice. Since the decision in the case we have had many cases presented in which it has been claimed that the Lehr decision controls. As a result we have been obliged to attempt to analyze and weigh factual patterns that vary from the facts in the Lehr case in differing degrees. Jaeger v. Estep, 1963, 235 Or 212, 384 P2d 175; Wilson v. Clark, 1964, 238 Or 126, 393 P2d 659; Rough v. Lamb, 240 Or 240, 401 P2d 10, and other cases still pending. We are sure that this has become a much greater problem to the trial courts.

Experience has taught that for the court to attempt to measure the varying facts in each of these cases against the pattern of facts in the Lehr case and to then decide as a matter of law how well each new case fits the pattern is unsound, if not unworkable. The deviation from the peculiar facts of Lehr change with each case, and we have concluded that the court is actually doing the jury work of matching facts against the reasonable man test.

In addition, the complexities of traffic conditions range from two or three cars following in a single lane of travel to bumper to bumper traffic in multi-lane streets and highways; from highway traffic uncontrolled by signals to urban controlled traffic. In these rear end collision cases whether or not a statutory rule such as following too closely, the giving of a signal, or speed has been violated in a given case should be left for the jury under proper instruction. This is equally true of the non-statutory duties. These considerations have caused us to reach the conclusion that we should follow the earlier cases cited in the dissenting opinion in the Lehr case and submit these eases to the jury.

A second assignment claims that the court erred in withdrawing a specification charging excessive speed. The only evidence on speed was that Masson was driving at 20 miles per hour. There was not sufficient evidence to support the claim of excessive speed as a separate allegation. The jury could, and no doubt did, consider the matter of speed as a part of the charge of lack of control. It was not error to withdraw the allegation. Krening v. Flanders, 1961, 225 Or 388, 358 P2d 574.

Affirmed.