Herinckx v. Hagen ( 1980 )

ROBERTS, J.,

dissenting.

I dissent from the majority opinion because the following facts lead me to the conclusion that the question of plaintiffs’ negligence was properly submitted to the jury and a new trial should not have been granted.

Defendant had been visiting friends on Aura Street. As he was leaving he noticed a large number of people who had been at the Pendleton Round-up turning into the street where his pickup truck was parked. The pickup truck was facing in the direction of the oncoming crowd. When plaintiffs walked past defendant’s pickup, defendant was standing with the car door open, saying good-bye to his friends.

In his answer to the plaintiffs’ complaint, the defendant claimed that the plaintiffs were negligent in "failing to keep a proper lookout” and in "failing to use a sidewalk available to pedestrians.”

The evidence suggested that, as the plaintiffs walked by the defendant, they were or should have been aware that the defendant was about to leave in his pickup. The defendant was standing by the truck, saying good-bye to his friends. Despite this, the plaintiffs did not look back at the truck. The plaintiffs were walking in the street, and they had a duty to exercise due care and to maintain a reasonable lookout. See Senkirik v. Royce et al, 192 Or 583, 595-600, 235 P2d 886 (1951); Vandevert v. Youngson, 140 Or 77, 12 P2d 1029 (1932), Bakkum v. Holder, 135 Or 387, 295 P 1115 (1931).

As for the allegation that the plaintiffs were negligent in failing to use a sidewalk, the evidence demonstrated that there was a sidewalk on one side of Aura Street, that the sidewalk was narrow, that some of those returning from the Round-up were using the sidewalk, and that the plaintiffs did not notice the sidewalk or did not consider using it. Again, the evidence creates a jury question and the trial court did not err in submitting the issue to the jury.

For these reasons, I respectfully dissent.