By virtue of the opinion of the majority, if a truck owner, at nighttime, should drive his vehicle upon the highway, park it upon the paved portion, turn off his taillights, and then some motorist, whose headlights were burning, should collide with the rear of the truck and meet with death or mangling injuries, there could be no recovery. Under the opinion of the majority, the motorist would be conclusively guilty of contributory negligence — because he either (1) failed to maintain an adequate lookout, or (2) failed to throw upon the truck sufficient light from his headlights to render the truck "clearly visible." The instructions given to the jury by the trial judge, and attacked by proper exceptions, will shortly be quoted. The majority find no fault with them. The instructions told the jury that the plaintiff was negligent if he failed to maintain an adequate lookout ahead and if he did not throw upon the unlighted truck sufficient illumination "to make it clearly visible." Those *Page 357 are the words of the instructions. Of course, if he was required to make the truck clearly visible — and the headlight law in effect at the time of the accident contained no such requirement — he should have seen it. Thus, this plaintiff was condemned of contributory negligence no matter which way he turned. Had any member of this court been upon the jury and had been obedient to the instructions, he, too, would have been compelled to return a verdict for the defendants. Therefore, the instructions were in effect a directed verdict for the defendants. This court ought to be frank and recognize the true nature of the error. Pecking away at this or that minor slip-up of the plaintiff's counsel will not suffice. Nor does it help in settling this appeal upon its merits to quote propositions of law which this court has definitely rejected. I refer to the majority's quotations from 2 Berry on Automobiles (7th ed.), § 2,932, and 1 Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed.) § 741. As recently as 1939, in Alt v. Krebs, 161 Or. 256, 88 P.2d 804, we rejected the rule which the majority quoted from these two treatises. Referring to it, our decision termed it "a doctrine definitely rejected by this court in Murphy v. Hawthorne, supra." But if the majority's present flirtation with that rule were based upon real affection and understanding they would give effect to the words which they quoted from Blashfield and which say "by the light of his own lamps or other available light." Had there been "other available light," that is, light in the defendants' taillamp, this accident would never have occurred.
It will be recalled from what is said in the previous decisions that the accident under consideration happened in the night and that the night was dark. The *Page 358 evidence not only authorizes, but virtually demands, a finding that the rear of the defendants' truck-trailer bore no lights. The clearance (side) lights were concealed, or at least partly so, from the rear by chains which held in place a heavy load. In fact, those lights, even when viewed from the front, were inadequate, and that was the reason a police officer was stopping the truck.
The headlight statute which was in effect at the time of the accident (1931 Session Laws, Ch. 360, § 60, Oregon Code 1935 Suppl., § 55-2603) said:
"The head lamps of motor vehicles shall be so constructed, arranged and adjusted that * * * they will at all times * * * produce a driving light sufficient to render clearly discernible a person two hundred (200) feet ahead, but shall not project a glaring or dazzling light to persons in front of such head lamp."
It will be observed that the requirement was to render discernible "a person." Although those were the words of the statute, the instruction told the jury that "the law requires the plaintiff to have his automobile equipped with lights which would throw sufficient light ahead to make clearly visible all vehicles, persons or substantial objects upon the roadway within a distance of two hundred feet. Likewise you are instructed that if you find * * * that he failed to have his car equipped with lights sufficient to make clearly visible the defendants' truck at a distance of two hundred feet, then the plaintiff would be negligent and could not recover." Thus, the instruction added to the statute's requirements "all vehicles", "substantial objects" and "the defendants' truck".
To that instruction the plaintiff excepted. The words of his counsel follow: "The plaintiff excepts to *Page 359 the instruction of the Court upon the issue of lights upon the plaintiff's automobile for the reason that there is no evidence in the record which shows that the plaintiff's lights were not proper, and surely no evidence in the record adduced by the defendants or anyone else in this case that the lights were improper or otherwise incorrect under the allegation of defendants' answer."
The plaintiff had asked that the jury be instructed: "There has been no evidence adduced in support of defendants' allegation in their amended complaint (answer) that the plaintiff was driving his automobile while equipped with defective and insufficient lights, and therefore I withdraw from your consideration that particular allegation of the amended answer." Plaintiff saved an exception to the refusal.
It will be recalled that although the words of the statute are "sufficient to render clearly discernible a person two hundred (200) feet ahead," the instruction, after adding to the statutory requirement "all vehicles" and "substantial objects", expressly exacted of the plaintiff's lights that they "make clearly visible defendants' truck at a distance of two hundred feet." The error is manifest. A word of explanation will show that the addition to the statutory requirement was material and prejudicial to the plaintiff. A person upon the highway, unlike a vehicle or substantial object, is not required to give notice of his presence there by a display of lights. The primary object of all law is to save human lives. Less regard is shown for the safety of property. The latter is required, for its own safety and the safety of others, to display lights, red flags, flares, etc. Good reason, therefore, supported the provision of the 1931 headlight law which singled *Page 360 out pedestrians and charged motorists with notice of them upon the highway in an area of two hundred feet ahead of the car, but dealt with vehicles and substantial objects with less consideration.
The plaintiff had requested the trial judge to instruct the jury: "I instruct you that the driver of a motor vehicle, in the absence of notice to the contrary, has a right to assume that other persons using the highway will obey the requirements of the Motor Vehicle Law." The requested instruction was refused and the plaintiff excepted. That instruction should have been given. In fact, it would have been proper to have employed language more specific and to have stated that the plaintiff as he proceeded along his course had a right to assume, in the absence of notice to the contrary, that an unlighted truck was not ahead. Berry, Law of Automobiles (7th ed.) § 3.79. Can there be any doubt that this unfortunate accident would never have happened if the truck-trailer had had a taillight "plainly visible" as required by law for a distance of five hundred feet. Oregon Code 1935 Suppl., § 55-2601. And if there is no doubt upon that subject, and surely there is none, reversible error is indicated in addition to those already mentioned and which I will now develop.
Notwithstanding the fact that the truck failed to display the lights required by our laws, the instructions told the jury that if the plaintiff "failed to have his car equipped with lights sufficient to make clearly visible the defendants' truck at a distance of two hundred feet, then the plaintiff would be negligent and could not recover." It will be noticed that the element of proximate cause was omitted. Very likely the omission was not unintentional and was due to a belief that *Page 361 since the plaintiff was required to maintain an adequate lookout and was also required to have headlights capable of rendering clearly visible the defendants' truck (so the court believed), the plaintiff was charged, as a matter of law, with knowledge of the presence of the truck the moment he came within two hundred feet of it. In other words, his lookout required him to see everything that was clearly visible, and the headlight law, so the court believed, required him to make the truck clearly visible. Due to a mistaken reading of the statute, the instructions assumed that form and therefore omitted the element of proximate cause. The omission of that element aggravated the errors which we have already pointed out.
A brief review of the facts will illustrate the prejudicial effect of the aforementioned errors. The trailer was attached at its forward end to the rear of the truck and must have been an object difficult of discernment upon the black pavement. It was about twenty feet long. The truck and trailer were coming to a stop upon the paved portion of the highway when the plaintiff's car crashed into the unlighted rear of the trailer. As we have said, the night was dark. A police officer, who had followed the truck-trailer and who was signaling its driver to stop, swore that there were no lights on the rear of the trailer. He said, however, that there was a reflector "on the back of the trailer." The overhanging load, however, obscured even that device. The plaintiff did not see it. It should have been visible for two hundred feet. Oregon Code 1935 Suppl., § 55-2601. The height of the trailer and of the load is not indicated in the record, but evidently the trailer was a low vehicle. It had no body. Its driver described it as a "logging trailer." It consisted merely of its wheels, frame, *Page 362 axles and two bolsters. One of the latter was over the front and the other over the rear axle. A bolster is the structure over the axles upon which the load rests. The load, which consisted of old rails and gas pipes, was extremely heavy — it weighed eighteen tons. These rails and pipes, which must have been more than thirty feet in length, lay directly upon the bolsters and extended five and one-half feet beyond the rear of the trailer. They also extended beyond the front of the trailer in such a way that one-third of their weight rested upon the rear section of the truck. The record indicates that the load was not a high one. The sides of the trailer and of the truck had no stakes or other similar parts. The load was held in place by chains. Since there was no body to the trailer, there was but little in the darkness for the eye to catch. The pavement was black in color. The wheels of the trailer had dual tires, that is, double tires. Their color manifestly was about the same as the pavement. Old iron reflects no light and has substantially the same color as dark-colored pavement and tires. Attached to the forward end of the trailer was the truck. The record mentions the tonnage and manufacturer's name of that vehicle, but yields no other description of it. However, since one-third of the weight of the rails rested upon the truck, it seems reasonable to assume that the truck was of the kind which we often see upon the highway; that is, it had no body except a low cab in which the driver sat. Hence, the truck, trailer and load were not tall objects which a motorist approaching from the rear could readily see.
Photographs taken at the site of the accident and introduced in evidence by the defendants show that the roadway ran through a shallow cut which, possibly, *Page 363 was three or four feet deep. Growing upon the slopes and top of the embankment, as shown by the photographs, was tall grass. Such a situation obscures still further a non-lighted object present upon the pavement.
The truck-trailer had passed over the crest of the grade for a distance of about six hundred feet when the accident occurred. This circumstance indicates that in all likelihood this low vehicle was not visible to one approaching the crest from the same direction that the truck was pursuing. It will be recalled that the pavement was black in color. It had a non-skid surface. Such a surface adds to the capacity of the dark color to conceal objects upon the road.
Again, it should be recalled that a police officer was signaling the truck to stop and that it had reduced its speed to about five to ten miles per hour. It was coming to a stop, however, upon the pavement. Mechler v. McMahon, 180 Minn. 252,230 N.W. 776, takes note of the hazards to the motorist in the rear when something of this kind is taking place. In that instance, the car behind did not observe that the unlighted truck was standing still until it was too late. The decision in that case states:
"The headlights of plaintiff's car were burning and an automatic windshield wiper was operating. When about 70 or 80 feet away, plaintiff observed the truck and at first thought that it was moving."
Many other motorists have been similarly deceived. Continuing, the Minnesota court said:
"In an instant he became aware of the fact that it was stationary, applied his brakes and turned his steering wheel to the left for the purpose of passing around the truck. His car failed to respond and skidded into the rear of the truck." *Page 364
The court held that he was not chargeable, as a matter of law, with notice of the unlighted truck upon the pavement.
One more circumstance must be mentioned. It is stated in the dissenting opinion written by Mr. Justice RAND when this case was originally before us. Frank Brittingham, a police officer who was traveling in a police car in the opposite direction to the truck-trailer, observed its inadequate light. He is the officer mentioned in a preceding paragraph of this opinion. When Brittingham noticed the inadequate lights he shortly reversed his car's direction and then followed the truck until after it had passed over the crest of the hill. It was while he was following the truck-trailer that he noticed the absence of lights upon its rear. After he had made these observations he drove ahead of the truck, turned around and parked his car. He then stepped to the roadway some distance ahead of the truck and was flagging it to a stop with his flashlight when the plaintiff's car crashed into the trailer. At that moment Brittingham's parked car was, of course, facing the on-coming truck and the plaintiff's car. As stated by Mr. Justice RAND, the lights of the officer's parked car were capable of diverting attention from the unlighted truck.
It is apparent from the above review of the evidence that the defendants' truck-trailer could not have been readily discernible upon the black colored pavement. More than one court has spoken of such difficulties. The following is taken from Baldwin v.City of Norwalk, 96 Conn. 1, 112 A. 660:
"It is common knowledge that substantial objects because of their composition or coloring, and the coloring of the surface of the object upon which they rest, are visible in greatly varying degrees when artificial *Page 365 light is thrown upon them. They are not necessarily clearly visible."
From Kadlec v. Johnson Construction Co., 217 Iowa 299,252 N.W. 103, we quote:
"* * * it might also be possible for an unlighted object on the highway to be undiscernible, if so camouflaged by color, lights and shadows that it blends in with the highway as to make it appear like part of the road. In such case it might not be clearly discernible by persons approaching it, although exercising ordinary care."
In Mostov v. Unkefer, 24 Ohio App. 420, 157 N.E. 714, the court said:
"* * * However that may be, it seems to us that the driver might have been exercising ordinary care in keeping a lookout ahead, and the background of the truck, its peculiar construction, and the reflection of the light thereon might have been such that it was impossible for the driver to discover it, by the exercise of such care, until he approached to within 75 or 100 feet. * * * If a red light had been on the truck, it is probable that the collision would not have taken place."
From Holcomb v. Perry, 19 La. App. 11, 138 So. 692, we quote:
"In holding the driver of an automobile responsible for not seeing a truck or other object with which he has a collision, the character, appearance and visibility of the object must always be taken into consideration. An automobile parked along the side of a highway presents such a surface for the reflection of lights from the headlights of the automobile approaching that the driver is usually bound to see it at such a distance that he can stop his car before reaching it. But in the case of trucks and trailers, with no area at all at the rear to reflect the light of the headlights when the truck is loaded with long slender poles or pipe, it is *Page 366 different. It cannot be expected that the driver of an automobile will see it in time to avoid a collision, and for that reason he will not be held negligent."
The very fact that the law requires rear lights indicates that unlighted vehicles are, as has often been judicially stated, menaces to the safety of all other users of the common highway.
Although the above makes it clear that the defendants' truck-trailer must have been difficult of discernment, the instructions, through a misreading of the statute, told the jury, as we have already seen, that if the plaintiff's headlights failed "to make clearly visible the defendants' truck at a distance of two hundred feet" he was "negligent and could not recover." Further, they refused to inform the jury that the plaintiff as he drove along was justified in assuming, in the absence of notice to the contrary, that all co-users of the highway would obey the law. As already said, error was committed in both instances.
The effect of the instruction that the plaintiff was required to maintain an adequate lookout and of the errors just mentioned was to render inevitable a verdict for the defendants. The latter so recognize. Their brief states: "The only alternative inferences are that either he was not keeping a proper lookout or else his lights were not adequate for that distance. Either horn of his dilemma brands him guilty of contributory negligence." Of course, if the statute required the plaintiff's headlights to possess such power that they would have rendered "clearly visible" the defendants' truck two hundred feet away (as the instructions required), the plaintiff should have seen the truck. The combined effect of requiring the plaintiff to maintain a lookout for objects that were clearly visible *Page 367 and to have headlights which would make the truck "clearly visible" was to charge the plaintiff with notice of the truck. For obvious reasons the law will not permit a person who is required to look to deny that he saw an object which was clearly visible; especially not when the law specifically required him, as the trial judge in this case erroneously believed, to make it clearly visible. Morser v. Southern Pacific Co., 124 Or. 384,262 P. 252. Therefore, as the defendants stated in the language just quoted, the instructions demanded a finding that the plaintiff was guilty of contributory negligence. They recognized no alternative favorable to the plaintiff. They were for all practical purposes a verdict directed for the defendants. InBaldwin v. City of Norwalk, supra, the court, in interpreting the headlight law of Connecticut, rejected a contention similar to the one made by the defendants. The facts there were even more favorable to the defendant than the ones before us. In rejecting their contention, the court said: "We do not construe the statute so as to create this dilemma." The error which the instructions before us committed was to assume, without warrant, that the headlight law demanded that the plaintiff's lights should have rendered clearly visible the defendants' truck-trailer. Barry v.Tyler, 171 Va. 381, 199 S.E. 496, upon which the defendants principally rely, and from which the majority quoted when this case was originally before us, was based upon a statute (Virginia Code of 1936, § 2154) which required of headlights that they "render clearly discernible a person or object" two hundred feet ahead. Moreover, the truck with which the car collided, according to the uncontradicted testimony, displayed two lighted taillights. There was no evidence *Page 368 that the headlights of the colliding car were burning.
It will be recalled from what was said in the preceding opinions that the plaintiff's uncontradicted testimony showed that his lights were burning on the bright switch and that his car was only three and one-half months old.
It is true that the instructions stated the law of contributory negligence, but that part of them could have been of no avail to the plaintiff after the instructions had demanded a finding that the plaintiff was guilty of contributory negligence. I repeat, the effect of the instructions was a directed verdict for the defendants.
The statement is warranted, I am sure, that error prejudicial to the plaintiff is plainly revealed by the record before us.
Rule 2 of this court states:
"No alleged error of the circuit court will be considered by this court unless regularly presented in the assignments of error contained in the appellant's opening brief."
Because the assignments of error do not specifically mention the above matters the majority deals with this cause as though the record was free from error and as though the issue of plaintiff's contributory negligence had been submitted as an issue of fact to the jury. In fact, the majority rebuke plaintiff's counsel because he "did not call the attention of the trial court to the fact that * * *." Of course, those words would not have been written if error had not been committed. But we observe that when plaintiff's counsel sought to enlarge upon the formal language of exception-taking he was stopped and told to *Page 369 "just take the exception." The majority do not question the sufficiency of the bill of exceptions as a basis for the consideration of every error which is now under consideration.
Regardless of the merit of deficiency of the assignments of error, the errors aforementioned were committed, and if repetition is again permitted they amount to a direct verdict for the defendants. It is the duty of this court to do justice and to give effect to the substantive law. Errors of procedure and oversights in the preparation of a case can not neutralize an error made in the administration of the substantive law. Rule 2 of this court further states:
"This court reserves the right to take notice of an error of law apparent on the face of the record."
The errors above mentioned are apparent upon the face of the record. They are clearly indicated in the bill of exceptions. Not only were they technically prejudicial to the plaintiff, but it seems manifest that had they not occurred a different verdict would have been reached. The merits of the plaintiff's case make an unusual appeal. His injuries were substantial, and the testimony concerning them was not contradicted. It is the sacrifice of justice in order that the minutiae of technical procedure may be exalted that is responsible for the criticism of the courts. This court, I believe, ought to avail itself of the exception to Rule 2 just quoted. Plenty of justification can be found for such a course. From 4 C.J., Appeal and Error, p. 1734, § 1239, I quote:
"Under an exception dispensing with the necessity of an assignment of error in the case of `an error of law, apparent upon the face of the record' the appellate court may and must consider errors coming *Page 370 within the terms of the exception without their being assigned."
It will be recalled that every error mentioned above is within the terms of the exceptions previously quoted. It is unnecessary to quote further from the authority just cited, but a further reading of the paragraph will clearly show an abundance of justification for taking note of the errors dwelt upon in the preceding paragraphs of this dissenting opinion.
The judgment of the circuit court ought to be reversed and we ought to recede from our previous opinion. I dissent from the majority.
RAND, J., concurs in this dissent. *Page 371