We hold that the court's failure to give such instruction in this case to the jury constitutes reversible error. See also Mercer v. Risberg, 182 Or. 526, 188 P.2d 632. Reversed.
These defects, if such they were, not having been called to the attention of the trial court, will not be noticed here. See Senkirik v. Royce, 192 Or. 583, 593, 235 P.2d 886; Mercer v. Risberg, 182 Or. 526, 532, 188 P.2d 632; Kiddle v. Schnitzer, 167 Or. 316, 352, 354, 114 P.2d 109, 117 P.2d 983; Cook v. Retzlaff, 163 Or. 683, 687, 99 P.2d 22; Lee v. Hoff, 163 Or. 374, 392, 97 P.2d 715; Davis v. Puckett Co., 144 Or. 332, 334, 23 P.2d 908."
These defects, if such they were, not having been called to the attention of the trial court, will not be noticed here. See Senkirik v. Royce, 192 Or. 583, 593, 235 P.2d 886; Mercer v. Risberg, 182 Or. 526, 532, 188 P.2d 632; Kiddle v. Schnitzer, 167 Or. 316, 352, 354, 114 P.2d 109, 117 P.2d 983; Cook v. Retzlaff, 163 Or. 683, 687, 99 P.2d 22; Lee v. Hoff, 163 Or. 374, 392, 97 P.2d 715; Davis v. Puckett Co., 144 Or. 332, 334, 23 P.2d 909. The only other assignment of error is directed to the exclusion from the evidence of Plaintiff's Exhibit "I", being a lease between Union Oil Company and one Raish, which contained the terms of the sub-lease between Union and Dixon. The purpose of the offer of this instrument was to show that Union retained control over the premises, that Dixon was in fact Union's agent and, therefore, that the former would be liable for the latter's negligence.
In all cases where applicable the court may and, if requested, should instruct the jury respecting indicated speeds in accordance with the provisions of the statute and, in so doing, should also explain what is meant by prima facie evidence. It is noted that in the instant case there was no such explanation, but no exception was taken on account thereof; therefore, the question is not before us. Mercer v. Risberg, 182 Or. 526, 188 P.2d 632. We have given careful attention to the entire charge of the court to the jury and do not find anything therein that would correct the error above noted.
There is no merit in this assignment for several reasons: (1) No proper exception was taken to the instruction. Mercer v. Risberg, 46 Ore. Advance Sheets 13, 188 P.2d 632. (2) There was no request by defendant for the court to give any modification of the statutory rules of the road. (3) The court in other parts of its charge fully instructed the jury as to the duty of a driver of a vehicle suddenly confronted by an emergency.
The admitted failure of Mr. LaValley to stop before he entered the intersection was negligence as a matter of law: Frame v. Arrow Towing Service, 155 Or. 522, 64 P.2d 1312; Buck v. Ice Delivery Co., 146 Or. 132, 29 P.2d 523; and Ramp v. Osborn, 115 Or. 672, 239 P. 112. Before going on it is well to take notice of the circumstances under which Mr. LaValley performed his negligent act. He swore that when he entered the intersection the appellant's car was 170 feet away. Although 170 feet is a substantial distance for one on foot, yet it is a short space for a rapidly moving automobile. The designated speed on Palmquist Road is 55 miles per hour; see § 115-320, O.C.L.A., as amended by 1941 Oregon Laws, chap. 458, § 1; and see Mercer v. Risberg, 182 Or. 526, 188 P.2d 632. From the foregoing, we see that Mr. LaValley emerged from a concealed place at a speed of 12 to 15 miles into a trunk highway where he must have known that cars might be approaching at a speed as high as 55 miles an hour. He must have known also that he was required to yield the right of way to every car to his left which constituted a traffic hazard.