McLain v. Lafferty

DENECKE, J.,

specially concurring.

I concur rather than dissent because the plaintiff does not contend that if the statute were applicable and was violated, such violation would not constitute negligence per se. I am of the opinion that it would not.

This decision is an apt illustration of the fallacy of holding that a violation of a criminal traffic law precludes one from recovering in a civil damage action. See Mr. Justice O’Connell’s dissent in McConnell v. Herron, 240 Or 486, 494, 402 P2d 726 (1965). The Department of Education directed that for safety purposes a school bus should be stopped in the right-hand lane of traffic. The legislature, however, had previously provided that it was a crime for any vehicle to stop upon the highway. We are deciding that the plaintiff acted unsafely as a matter of law although he did precisely what the safety regulation directed him to do.