Stoneburner v. GREYHOUND CORP. , 232 Or. 567 ( 1962 )

PERRY, J.

The plaintiff, an employee of the C. H. Strong Construction Company as a crew superintendent, alleged that he was injured when struck by a bus of the defendant Greyhound Corporation, operated by the defendant Shelton. The jury returned a verdict for the defendants. Plaintiff moved for a new trial, which was granted by the trial court, and from this order the defendants appeal.

The facts of this case, so far as they are necessary to this opinion, are as follows: The plaintiff was foreman of a construction crew engaged in relining with concrete the Cape Creek Tunnel through which Highway 101 runs in Lane County, Oregon. This tunnel is between 700 and 800 feet long and runs generally north and south. Normally the tunnel accommodates two-way traffic, but during the construction period traffic was limited to one way and was regulated by automatic traffic signals at each end of the tunnel.

On May 6, 1960, plaintiff was working alone about one-third distance in the tunnel from the south end, and was stooping to pick up scraps of lumber, when, he says, he was struck from the rear by a Greyhound bus. The plaintiff testified he did not see the bus before or at the time of impact, but after he was struck he looked up to see a Greyhound bus beside him that did not stop.

The trial court granted the new trial upon the basis that he had failed to instruct the jury that if they found the plaintiff was contribuíorially negligent that his own negligence must be a proximate cause of his injuries to bar his recovery.

Where error has been committed a motion for a new trial is addressed to the discretion of the trial court as to whether or not the error committed was prejudicial, and its order will be upheld unless it appears there has been an abuse of that discretion. Hillman v. Northern Wasco County PUD, 213 Or 264, 323 P2d 664; Guthrie v. Muller, 213 Or 436, 325 P2d 883; Clark v. Fazio et al., 191 Or 522, 230 P2d 553.

The trial court gave the following instructions:

“* * * I instruct you that negligence ordinarily consists in doing that which an ordinary, prudent and careful person would not do, or in failing to do that which an ordinary, careful and prudent person would do in a particular set of circumstances.

“It means the failure to use ordinary and reasonable care. And what constitutes ordinary and reasonable care in any particular case or set of circumstances depends upon the risks or dangers involved, or reasonably expected as a result of the failure to use such due care.

“In other words, it is a measure of conduct. And that measure of conduct is not the highest degree of care, nor is it satisfied by the lowest degree of care.

“It is that care which an ordinary person would exercise under the same or similar circumstances.

“In addition, the failure to obey the requirements of a law or a statute which for safety or protection of others, commands or requires certain acts, or conduct, or forbids or prohibits certain acts, or conduct, is negligence per se; or, in other words, negligence in and of itself, regardless of what an ordinary and prudent person might do in the absence of such law, the law having established what is required.

“However, before one’s negligence in any given case, if there is negligence, would make him liable for injuries resulting from an accident, or liable for damages complained of, if any, such negligence must be the proximate cause of the resulting injury or damage complained of.

“Now, the proximate cause of an injury is that cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the results would not have occurred, and which result in the light of the attending circumstance ought to have been seen by a person of ordinary care and prudence. In order to constitute a particular act of negligence the proximate cause of any injury, it is not essential the precise injury for which recovery is sought could have been foreseen. It is sufficient if a defendant could have reasonably anticipated that some injury might result from the act or omission of which complaint is made. There must be nothing to break the causal connection between the alleged negligence and the injury.

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“Now, if you find from a preponderance of the evidence that the plaintiff himself was negligent in one or more of the particulars alleged in the defendant’s answer, and that such negligence of the plaintiff, if any, contributed to the cause of the accident in any degree, then the law leaves the parties where it finds them, and neither party may recover against the other.”

The plaintiff’s contention on his motion for a new trial, concurred in by the trial court, is that the above instruction on contributory negligence fails to state that the plaintiff’s negligence must be found to be a proximate cause of his injuries. Further, that the use of the “modifying phrase ‘in any degree’ weakened the word ‘contributed’ ” so that it could not be substituted adequately for proximate cause. Also, the plaintiff contended the failure to use the word “proximate” in the instruction permitted the jury to consider remote negligence of the plaintiff to bar his recovery.

There is no merit in this last contention of the plaintiff. The court’s instruction limits the jury’s consideration of the contributory negligence of plaintiff to those acts of negligence alleged in the defendants’ answer. Each of these allegations of negligence refers to a failure to use due care in a manner which, if not performed, would necessarily be an efficient cause of plaintiff’s injury.

There is no doubt but that the law requires not only proof of negligence, but proof that there is a causal relation between that negligence and the injury suffered to bar a plaintiff from recovering from a negligent defendant. Leap v. Royce et al., 203 Or 566, 279 P2d 887; Senkirik v. Royce et al., 192 Or 583, 235 P2d 886. The question presented, therefore, is whether or not it was necessary for the court, under the facts of this ease, to advise the jury that if they found the plaintiff negligent they must also find such negligence was a “legal cause,” the terminology of 2 Restatement of Torts, § 281, Negligence, page 734; and, § 431, Causation, page 1159, or, as we usually and customarily say, a proximate cause of his injury.

“Legal cause,” or, “proximate cause,” in its larger aspect, covers, in general, all of the limitations placed by the law upon the responsibility of a person for his negligent conduct. Prosser, Law of Torts, Hornbook Series, 2d Ed, Ch 9, page 252. Thus, proximate cause in its larger aspect, refers to the limitations placed on the responsibility of a negligent defendant to a plaintiff, and refers to limitations placed on a negligent plaintiff’s right of recovery against a negligent defendant.

The court instructed on negligence, and the jury returned a verdict for the defendants.

The defendants allege the plaintiff was negligent in failing to maintain a proper lookout for defendants’ vehicle; that he failed to listen for the approach of defendants’ vehicle; failed to give any warning of his presence in the tunnel, and failed to yield the right of way. Other allegations of negligence as against the plaintiff are set forth hut are merely repetitious of the allegations above listed.

Since the accident and injuries of the plaintiff herein were caused by a collision between the bus and the person of the plaintiff within the tunnel, the only efficient causes of such collision had to be the negligence of the bus driver or the personal negligence of the plaintiff, or both. There is no evidence of outside forces or of conditions in operation which in any manner could have been considered a responsible agency in bringing about the collision.

“In general if there is reasonable doubt as to the proximate cause of an injury it is a question for the jury; but questions of proximate cause are for the court in plain and indisputable cases or where the causal connection is evidently not proximate; and if the record is such that proximate cause may be assumed as a matter of law that issue should not be submitted to the jury.” 65 CJS 1187, Negligence, § 264.

This statement expresses the established rule in this state. Zickrick v. Cooke et al., 197 Or 87, 252 P2d 185; Ahern v. Oregon Telephone Co., 24 Or 276, 288, 33 P 403, 35 P 549, 22 LRA 635.

As a matter of caution, trial courts submit instructions on proximate cause, but such instructions are unnecessary where in the very nature of things the alleged acts of negligence, if true, necessarily formed a part of the efficient cause, and the law itself would draw that inference.

It clearly appears from the record that if the plaintiff was guilty of negligence in any of the particulars alleged in defendants’ answer, they must of necessity have been an efficient cause of his injuries. It was therefore unnecessary for the trial court to submit to the jury a question of fact as to causal relation. The only question of fact for the jury insofar as the plaintiff’s actions were concerned was whether he was negligent as alleged. There was therefore no error in the court’s failure to use the words proximate cause. Since there was no error, the trial court abused its discretion in granting a new trial.

The cause is reversed with instructions to reinstate the judgment for the defendants.