Tokstad v. Lund

PERRY, C. J.,

dissenting.

I cannot agree that the trial court was in error when he instructed the jury on the statutory duty of the driver of a disabled vehicle to set out warning signals in front and to the rear of the disabled vehicle.

*312The statute was enacted as a safety measure to protect all persons traveling the highway and without question the plaintiff fell within the ambit of its protection.

The reach of the statute is to give a warning of danger so that all persons traveling the highway will conduct themselves as reasonably prudent persons with knowledge that they are entering a zone of danger to themselves or others. This is amply disclosed by the decisions of this court in the Shelton and Frame cases cited by the majority.

What the majority seem to overlook is that the red flag warnings apply as a notice of all dangers incident to the situation, not just those which may appear obvious to the driver of a motor vehicle so that the traveler will not collide with the disabled vehicle.

This purpose is well expressed in the following cases:

“* * * The statute requiring the placing of warning lights was designed not merely to protect the stalled truck and prevent motorists from colliding with it but to warn of the dangers incident to the situation. * * *” Bunch v. Hanson, 251 Iowa 1097, 1106, 104 NW2d 581, 585 (1960).

The statutory warnings as to stalled vehicles upon and near the traveled portion of the highway “* * * are intended to protect not only the disabled truck but to make other automobile drivers aware of the entire situation and of the dangers incident to it.” Miles v. General Casualty Co., 254 Wis 278, 286, 36 NW2d 66, 70.

“The regulation requiring the placing of warning signs was designed not merely to protect the *313stopped truck and prevent motorists from colliding with it, but to warn of the dangers inherent in the situation. The presence of red flags gives approaching motorists the opportunity to reduce speed and proceed with greater caution.” Brand v. J. H. Rose Trucking Company, 102 Ariz 201, 205. See also annotations 111 ALR 1516; 67 ALR2d 12.

The basis of the majority opinion—that there was no causal connection between the negligent failure to set out the warning signals and the later collision— rests on a faulty legal conclusion drawn from the statement “[t]here was no direct or indirect evidence that if Lund had seen the red flags earlier he would not have tried to go past the stalled truck as he did,” because it assumes the conclusion that a reasonable prudent person would drive as Lund did whether there was a warning sign or not.

A question of fact is presented to a jury whenever a fact is proven and an inference can be drawn from that fact that reason dictates. Morrison v. California. 291 US 82, 78 L ed 664, 54 S Ct 281; James-Dickinson Farm Mortg. Co. v. Harry, 273 US 119, 71 L ed 569, 47 S Ct 308; McFarland v. American Sugar Ref. Co., 241 US 79, 60 L ed 899, 36 S Ct 498; Meares v. Meares, 256 Ala 596, 56 So 2d 661; Wiley v. Sampson-Ripley Co., 151 Me 400, 120 A2d 289; Cox v. Nance, 24 Tenn App 304, 143 SW2d 897.

At the time of this occurrence, it was snowing lightly, the road was somewhat down hill in the direction Lund was traveling and icy. Lund was unable to observe any conditions existing beyond the stalled truck due to a curve in the highway. It was conclusively established that there were no warning signs *314set oat to the east of the stalled track, the direction from which Land was approaching the track.

It woald have been improper for Land to have testified as to what he woald have done had the danger warnings been given.

It is Hornbook law that a person’s negligence is to be measared, not by what he did do, bat by what a reasonable pradent person woald have done ander the same or similar circumstances.

Since it was conclusively established as a fact that the driver of the stalled track was negligent per se in not giving any warning of danger as required by the statate, a reasonable conclusion coaid be drawn that a reasonable pradent person ander the circumstances then and there existing woald have brought his vehicle ander control so that he coaid have stopped in a few feet and not been required to attempt to climb a snow bank when directed to do so by the officer.

The record discloses the reason the police officer was directing the defendant to drive on the right-hand side of the highway and along the snow bank was because the roadway ahead was partially blocked by stopped vehicles that had been proceeding in the same direction, a situation of which the defendant was unaware.

There is also evidence in the record that the officer gave a signal that could be interpreted as a command for the defendant to stop.

The factual question presented to the jury by the instruction given was whether the defendant Land as a reasonable pradent person, ander all of the circumstances then and there existing, could rightfully rely upon what he could see and therefore assume that *315he had only to safely pass the truck without injury to himself or anyone else; or whether, if the warning signs had been there as required by statute, he, as a reasonable prudent person, under all the circumstances then and there existing, would have been put upon notice that he was approaching a dangerous situation that would require him to either stop and investigate or proceed in such a manner that he could stop before colliding with some unknown stopped vehicle that had become a part of the situation created by the stalling of the truck.

Causation is demonstrated when there is evidence from which a jury could find that a failure to perform a legal duty could have prevented the resulting accident. Loibl v. Niemi, 214 Or 172, 327 P2d 786. It is an admitted fact that the warning signs were not placed and this is negligence per se. Frame v. Arrow Towing Service, 155 Or 522, 64 P2d 1312, cited by the majority.

Thus, whether the defendant, under the circumstances, was lured into proceeding as. he did by the lack of warning signs so that the collision occurred by reason of the stalled truck driver’s negligence, and thus became a causative factor, was a question that should be answered by the jury and not by this court. Certainly reasonable minds could conclude that, had Lund been warned, he as a reasonable prudent person would have proceeded on the icy highway so that he could have stopped in less than 60 feet.

■ The majority also find that the trial court erred in directing a verdict in favor of McKeans, who were the employers of Lund. They base this upon the fact that the time sheet, which was kept by Lund and forwarded by him to McKeans, disclosed that he had *316charged the McKeans for an 8 hour day of work on December 24th, the day of the accident. Therefore, they say, a jury could find that he was paid for the time during which the accident occurred.

Assuming such a fact could be reasonably inferred, it is still necessary for the doctrine of respondeat superior to apply to have some evidence that at the time of the accident Lund was acting in the furtherance of his employer’s business. Eckleberry v. Kaiser Foundation et al, 226 Or 616, 359 P2d 1090, 84 ALR2d 1327; Knapp v. Standard Oil Co., 156 Or 564, 68 P2d 1052; Hantke v. Harris Ice Machine Works, 152 Or 564, 54 P2d 293.

In furtherance of his employer’s business “is not synonymous with the phrase, ‘during the period covered by his employment.’ ” Hantke v. Harris Ice Machine Works, supra, at p. 567.

The evidence is undisputed that Lund was on his way home to spend Christmas with his family. The evidence is undisputed that Lund was using his own vehicle and was not paid mileage to and from the job site except at the beginning of and completion of the job for his employer at Redmond, Oregon. The evidence is conclusive that the job at Redmond had not been completed prior to the accident.

The record is devoid of any evidence that at the time of the accident Lund was doing anything in the furtherance of his employer’s business. The fact that an employee falsified his work sheet will not support an inference that the employee was about his employer’s business.

I would affirm the judgment of the trial court.