dissenting.
I am of the opinion that the question of defendant’s negligence and plaintiff’s contributory negligence was for the jury.
The majority opinion finds plaintiff contributorily negligent as a matter of law because he violated a *515statute (ORS 483.220). In McConnell v. Herron, decided this day, I have explained why the determination of a party’s negligence as a matter of law should not be related to the violation of a statute. The present case illustrates how the adoption of the violation-of-the-statute formula tends to produce an unsatisfactory analysis of the real problem in the case.
The reasoning adopted by the majority is deceptively simple. It runs as follows. The violation of ORS 483.220 is negligence per se; plaintiff violated the statute; therefore plaintiff is contributorily negligent and the case cannot go to the jury. The vice of this form of reasoning is its assumption that the legislature has established the standard. The standard requires a pedestrian to walk on the left side of the highway. “Highway” is interpreted to mean the gravelled portion of the road. The negligence of the pedestrian is established as a matter of law if the evidence conelusivly shows that he walked with his back to oncoming traffic.
The problem takes on a different aspect if, as suggested in my dissenting opinion in the McConnell case, we disregard the statute and identify the standard which we as a court believe should apply in this case. Approaching the problem in this way the first question is whether a pedestrian necessarily fails to exercise due care when he walks with his back to oncoming traffic. The pedestrian who walks on the travelled portion of the highway with his back to the oncoming traffic subjects himself to much greater danger than if he walks on the travelled portion of the highway facing the traffic. There is not this same difference in danger when a pedestrian walks on the gravelled portion of the highway.
The amount of care a person on the shoulders of *516a highway should be required to exercise should depend in large measure upon what he may assume the non-negligent motorist will do in using the highway. Whether the pedestrian on the unpaved portion of the highway is facing traffic or has his back to it he should be entitled to assume that generally the motorist will not suddenly veer off onto the shoulders unless there is an emergency. If there is such an emergency it is likely that the pedestrian who faces the traffic will have little if any better chance of safety than the pedestrian with his back to the traffic.
In Kaufman v. Fisher, 230 Or 626, 371 P2d 948 (1962) we held that when an automobile suddenly veers off the highway the jury is entitled to infer, in absence of evidence to the contrary, that the accident resulted from the driver’s negligence. A pedestrian on the unpaved portion of the highway, whether facing or with his back to the traffic, has a right to assume that in the absence of an emergency or the motorist’s negligence he will be relatively safe.
When we view the matter in this way it seems reasonable to say that although a pedestrian walking with his back to the traffic on the paved portion of the highway may be negligent as a matter of law, a pedestrian walking on the unpaved portion of the highway with his back to the traffic is not necessarily negligent. There may be a reasonable difference of judicial opinion as to what a pedestrian on the untravelled portion of the highway is entitled to expect with respect to the motorist’s non-negligent conduct. However, whether the entire width of the road or only the paved portion is off limits for the pedestrian walking on the right side of the highway, the conclusion that he has not conducted himself with due care should be reached only after testing his conduct against a *517standard which the court has set and that standard should be set only after an intelligent appraisal of the respective duties of the motorist and the pedestrian under such circumstances.
If it is to be held that the pedestrian was negligent as a matter of law, that conclusion should be reached upon the ground that the evidence establishes that he violated the standard set by the court, not because a statute was violated (and as I pointed out in the McConnell case, this should be the rationale even if the court-made standard was influenced by the existence of the statute).
The cases in other jurisdictions provide little helpful analysis. However, there is respectable authority for the view that the duty to face the traffic applies only to pedestrians walking on the paved portion of the highway.① Even in those jurisdictions which hold that the plaintiff is negligent as a matter of law he nevertheless gets to the jury on the issue of last clear chance, causation, or justifiable violation.② In some of the cases the evidence supporting these issues seems inadequate suggesting that the courts, not being happy with a legislative imposed standard, ameliorate the strict standard by submitting to the jury issues not adequately suported by evidence.
Denecke, J., joins in this dissent.See e.g., Highland v. Chas. H. Lilly Co. et al, 175 Wash 507, 27 P2d 693 (1933). These cases generally reach this result upon the ground that the statute setting the standard applies only to pedestrians on the paved portion of the highway. Thus the standard which I have recommended in the present case is judicially established by these other courts through an interpretation of a statute.
See cases cited in 2A Blashfield, Cyclopedia of Automobile Law and Practice, § 1416 (1951).