Senger v. Vancouver-Portland Bus Co. , 209 Or. 37 ( 1956 )

PERRY, J.

This is an action brought by the plaintiff Tony Senger against the defendant Vancouver-Portland Bus Co. to recover for personal injuries sustained by the plaintiff when the automobile he was driving collided with the defendant’s bus in the intersection of N. W. Couch street and N. W. Tenth avenue in the city of Portland.

The plaintiff’s complaint charges the defendant, through its driver, with being negligent in the operation of the bus, (1) in failing to maintain a proper lookout, (2) with driving at an unreasonable rate of speed under the circumstances then and there existing, and (3) in failing to have the bus under proper control so as to be able to stop or turn to avoid colliding with the automobile of the defendant.

The answer of the defendant denies it was negligent and charges the plaintiff with being contributorily negligent as follows:

“1. In unlawfully operating his automobile in an easterly direction on N. W. Couch Street.

“2. In entering and attempting to cross N. W. Tenth Avenue at its intersection with N. W. Couch Street without bringing his automobile to a full and complete stop.

“3. In failing to yield the right of way to the defendant’s bus.

“4. In operating his automobile at an excessive rate of speed under the circumstances.

“5. In failing to keep a proper or any lookout.

“6. In failing to have his automobile under proper or any control.

“7. In failing to stop, slow down or swerve in an effort to avoid a collision under the circumstances above set forth.”

To the defendant’s answer, charging the plaintiff with contributory negligence, the plaintiff made only a general denial.

The jury returned a verdict for the plaintiff, and from the judgment entered thereon the defendant appeals.

Northwest Tenth avenue extends in a northerly and southerly direction; Northwest Couch street extends in an easterly and westerly direction. At the time of the accident, the Bureau of Traffic and Transportation of the city of Portland, pursuant to City Ordinance No. 90453, had designated and marked N. W. Tenth avenue as a one-way thoroughfare which permitted vehicles to travel only in a northerly direction thereon; also, N. W. Couch street from Eleventh avenue east was designated as a one-way street with traffic only permitted to travel in a westerly direction thereon. At the intersection of N. W. Tenth avenue and N. W. Couch street, N. W. Tenth avenue was designated as a favored highway, and those entering thereon from N. W. Couch street were required to stop and yield the right of way before entering. Vehicles traveling from the west on N. W. Couch street were notified at the west line of the intersection of N. W. Couch street and N. W. Eleventh avenue by signs as follows: “Stop.” “Entering One Way Area Watch Signs.” At the east line of the intersection there was posted the following signs: “One Way Do Not Enter” “Eastbound use Burnside.”

On the evening of June 26, 1952, the date of the accident, the plaintiff traveled in an easterly direction on N. W. Couch street, across its intersection with N. W. Eleventh avenue, and into the area of N. W. Couch street, designated as “One Way Do Not Enter”, against the designated permitted traffic, on into the intersection of N. W. Tenth avenue. The defendant’s bus was traveling in a northerly direction on N. W. Tenth avenue in accordance with the designated signs. The evidence on behalf of the plaintiff tended to fix the speed at which the defendant’s bus was being operated at from 30 to 35 miles per hour, and the plaintiff’s speed at about 15 miles per hour in an indicated speed zone of 20 miles per hour; that the plaintiff was traveling in the wrong or easterly direction on N. W. Couch street, and that he did not see the bus until just immediately before the moment of impact; that the right front side and the right side of the plaintiff’s automobile was crushed, and the left front side and front of the defendant’s bns suffered damage in the collision.

The driver of the defendant’s bus stated that he did not see the automobile of the plaintiff until approximately the moment of impact, and that he was concentrating his view to his right, the direction from which traffic was permitted to enter the intersection from Couch street.

The defendant moved for a judgment of involuntary nonsuit, and, when all parties had rested, moved .for a directed verdict in its favor. The refusal of the trial court to grant these motions is assigned as error.

It being conceded that the plaintiff was traveling in an easterly direction on N. W. Couch street in a manner prohibited by ordinance, and that the street was duly marked, the motions of the defendant raise but two questions: (1) Is there any evidence of a proximate cause of the accident? (2) Was the plaintiff guilty of negligence as a matter of law which would prevent his recovery?

Section 115-307, OCLA, now ORS 483.042, authorizes local authorities to “prohibit other than one-way traffic” upon city streets, and provides that when this is done they shall maintain suitable signs at reasonable intervals, visible to drivers of vehicles, to notify them of the existence of the one-way street.

The plaintiff contends that the ordinance did not specifically prohibit other than one-way traffic, because Ordinance No. 90453 merely provides as follows:

“The Bureau of Traffic and Transportation, which bureau is hereby authorized to act for and on behalf of the City of Portland, shall have authority to designate and establish one-way traffic streets, avenues, and highways within the City of Portland. Such one-way streets, avenues, and highways so established shall be designated by signs, signals or markings which shall be placed and maintained by the said Bnrean of Traffic and Transportation.”

We believe this contention is not well taken for the action of the Burean of Traffic and Transportation in designating and establishing that traffic may flow in only one direction is certainly a prohibition against vehicles driving upon that street in an opposite manner.

The plaintiff also argues that the ordinance is invalid in that the council could not constitutionally delegate its power granted by the statute to the Bureau of Traffic and Transportation.

There is a presumption that the city council in delegating power to the Bureau also provided a yardstick by which its acts could be measured. There are no pleadings which challenge the validity of the council’s acts; therefore, since the validity of the ordinance was not questioned in the trial court (see Roper v. Greenspon, 272 Mo 288, 198 SW 1107), and, where the constitutionality of an act has not been raised as an issue in the trial court, it will not be considered here. The Alpha Corp. v. Multnomah Co., 182 Or 671, 189 P2d 988.

The plaintiff also contends that proceeding in the wrong direction on a one-way street is not negligence per se, because the designation of streets for use in but one direction has as its sole function the expediting of traffic and is not designed to prevent intersection accidents.

There is little question but that the primary purpose of a one-way street is to facilitate the flow of traffic, but, where, as here, one-way streets intersect, we believe there is also the purpose to prevent accidents in a congested area by permitting entrance from only one direction from a street onto a through-highway; but, beyond that, § 115-311, OCLA, now ORS 483.128, now makes it unlawful for the driver of any vehicle to disobey any lawful traffic sign or signal unless directed by a police officer. The plaintiff violated this act when he disobeyed the “Do not enter” sign on his entrance onto N. W. Couch street, which violation continued so long as he drove in the prohibited direction thereon.

The plaintiff contends, however, that even though he was negligent per se, still it was for the jury to say whether or not his negligence was a contributing factor to his injury, citing: Ellenberger v. Fremont Land Co., 165 Or 375, 107 P2d 837; Landis v. Wick, 154 Or 199, 57 P2d 759, 59 P2d 403; Kuehl v. Hamilton, 136 Or 240, 297 P 1043; Martin v. Oregon Stages, Inc., 129 Or 435, 277 P. 291.

We need not, however, decide that matter in this case for we are of the opinion that the defendant was not guilty of actionable negligence. Actionable negligence, for which a recovery may be had, is present whenever there is a legal duty or obligation upon a person to do or refrain from doing some act which inflicts injury upon another. The duty toward another may arise either from the failure to observe a statutory requirement or to exercise the degree of care that a reasonable person would exercise under similar circumstances. Birks v. East Side Transfer Co., 194 Or 7, 241 P2d 120.

In Johnson v. Updegrave, 186 Or 196, 201, 206 P2d 91, the following instruction was given:

“A person traveling upon a highway has the right to assume in the absence of notice to the contrary that all other persons using that same highway will observe the law and will exercise reasonable care to avoid injury to themselves and other persons, and he is not bound to keep a lookout for others who may violate the law.”

In the opinion in the above-case, Mr. Justice Brand stated on page 203:

“* * * but we do hold that the right to assume that others will obey the law does not imply the right to drive negligently into a stationary obstacle whether the obstacle be a lawful or unlawful one.”

Likewise, in Walker v. Penner, 190 Or 542, 556, 227 P2d 316, we have stated the rule to be as follows:

“It is the rule of law that no person need anticipate negligence on the part of any other person, and a motor vehicle operator may at all times assume until he has notice to the contrary, or until by the exercise of due care on his part he should and would have known to the contrary, that other persons using the highway will exercise due care and obey the law, and to act accordingly; but in no event does this right of assumption relieve him of his continuing duty to maintain such a lookout as a reasonably prudent person would maintain in the same or similar circumstances.” (Italics theirs)

There existed no duty on the part of the bus driver to maintain a lookout for any vehicle entering the intersection from the west on Couch street. In fact, by reason of the ordinance providing for the establishment of one-way traffic, which carried with it the right to establish the direction in which the traffic should flow, it in effect relieved the driver of a duty to observe the approach of vehicles at this point from the west. Since the defendant was relieved of the duty to observe the approach of the plaintiff from the west by reason of the regulation of traffic at this intersection, it would be a mockery to say that the yardstick measurement of the reasonable prudent person could apply to the matter of lookout in this ease.

In Daly v. Employers Liability Assur. Corporation, Ltd. (1943; La App) 15 So2d 396, 399, the Louisiana court held:

“* * * A prudent driver, upon approaching a street which he knows to be a one way street, looks for traffic in the direction in which it is supposed to travel and he cannot, by any rule of law or reason, be expected to anticipate that anyone is going to violate the law by proceeding into the intersection from the wrong way.”

There is no evidence in this ease that the driver of the bus had notice of the plaintiff’s violation of the traffic law of the city of Portland.

There is likewise no evidence that, with notice of the plaintiff’s presence, the bus was driven into the plaintiff’s vehicle.

Since there was no evidence upon which a jury could base a finding of negligence on the part of the defendant for failure to maintain a lookout, the speed of the bus, and whether or not the bus was under proper control would be immaterial.

The judgment is reversed with instructions to sustain the defendant’s motion for a directed verdict.