Ore. Motor Stages v. Portl'd Traction Co., 198 Or. 16, 255 P.2d 558; Hopfer v. Staudt, 207 Or. 487, 493, 298 P.2d 186. This case was properly submitted to the jury to determine to what extent, if any, the plaintiff looked and if, in this particular, he exercised the degree of care required of him. Stryker v. Hastie, 131 Or. 282, 282 P. 1087. "* * *. Whether, under the circumstances shown by the testimony, defendant had the right of way or, if having it, he was justified in the absolute exercise of it were all questions of fact for the jury and whether, under the circumstances stated, plaintiff's conduct in not looking to her right after entering the intersection, and after having observed there was no car coming from her right within 200 feet or more, was negligence upon her part was a question for the jury to be determined under the rule that persons driving across street intersections must exercise such reasonable precautions for their own safety as ordinarily prudent persons would exercise under the same circumstances. * * * Therefore, whether plaintiff, having looked once to the right after entering the intersection and failing to look in that direction again, was negligent depends entirely upon the circumstances existing at the time and not upon any fixed, inflexible rule of law applicable to all cases and under
The court has many times declared that the right of way conferred by statute is not inflexible, nor absolute, nor a right which may be exercised without due regard to the attendant circumstances and the safety and rights of others. Black v. Stith, 164 Or. 117, 121, 100 P.2d 485; Keys v. Griffith, 153 Or. 190, 198, 55 P.2d 15; Stryker v. Hastie, 131 Or. 282, 287, 282 P. 1087; West v. Jaloff, 113 Or. 184, 200, 232 P. 642, 36 A.L.R. 1391. The requirements of § 115-320, O.C.L.A., as amended, known as the "basic rule", were intended, as Mr. Justice RAND said in Stryker v. Hastie, supra, "to curb recklessness and to prevent careless driving upon the part of every person driving a motor vehicle upon any public highway. They are applicable to drivers having the right of way as well as to those not having it.
It is impossible for a disfavored driver to "look out for and give right of way to vehicles on the right" without looking to his right at some time before entering the intersection or passing beyond the center of it. This duty of the disfavored driver to look is not measured by the degree of caution used by a person of ordinary care and prudence, but is an absolute duty imposed by law. The place where and the number of times when the disfavored driver shall look to the right, and the manner of his proceeding after so looking, are to be determined by what an ordinarily prudent and careful person would do under like conditions and circumstances: Knox v. Abrams, 132 Or. 500 ( 286 P. 517); Stryker v. Hastie, 131 Or. 282 ( 282 P. 1087). The defendant's car was approaching the intersection of North Central avenue and Fourth street at the left of the car driven by Doty. It is the plaintiff's theory that the Doty car had the right of way; that the accident involving the plaintiff was caused by the defendant's failure to "look out for and give right of way" to the Doty car; and that such failure was the proximate cause of the personal injuries suffered by plaintiff and the damage done to his automobile.
as entitled to have the case withdrawn from the consideration of the jury. It has been repeatedly held by this court and it seems to be the rule generally that, when a pedestrian, who is about to cross a street or highway, sees an automobile approaching at such a distance from him that would lead a reasonable person to believe he can cross in safety, he has a right to proceed without waiting for the automobile to pass, and is not guilty of contributory negligence in so doing. The question in such a case is: Did the pedestrian use that degree of care for his own safety which an ordinarily prudent person would use in the same place and under the same conditions? And ordinarily this is a question of fact for the jury and not one for the court: Marsters v. Isensee, 97 Or. 567 ( 192 P. 907); Casto v. Hansen, 123 Or. 20 ( 261 P. 428); Nisley v. Sawyer Service, Inc., 123 Or. 293 ( 261 P. 890); Red Top Taxi Co. v. Cooper, 123 Or. 610 ( 263 P. 64); Hinckley v. Marsh, 124 Or. 1 ( 263 P. 886); Stryker v. Hastie, 131 Or. 282, 288 ( 282 P. 1087); Hecker v. Union Cab Co., 134 Or. 385 ( 293 P. 726); Brady v. Schnitzer, 135 Or. 250 ( 295 P. 961); Emmons v. Skaggs, 138 Or. 70 ( 4 P.2d 1115); Krieger v. Doolittle, 142 Or. 122 ( 18 P.2d 1041); Purdin v. Richardson, 148 Or. 68 ( 34 P.2d 926). It is settled law that a motion for a nonsuit or for a directed verdict admits the truth of plaintiff's evidence and of every inference of fact that can be reasonably and legitimately drawn therefrom, and that in considering such motions, the evidence must be interpreted in the light most favorable to the plaintiff.
In crossing a street intersection the driver of an automobile having the right of way, having looked to the right and seen an automobile approaching, and believing he had sufficient time to cross the intersection, is not contributorily negligent as a matter of law in failing to look again to the right. His actions at such times should be governed by those of a reasonable, prudent person under such circumstances: Siskel v. Calhoun, 147 Or. 606 ( 34 P.2d 659); Stryker v. Hastie, 131 Or. 282 ( 282 P. 1087); Ellis v. Olson, 139 Wn. 351 ( 246 P. 944). We do not deem it necessary to comment on all the cases cited by the parties.
Section 55-702, Oregon Code 1930. The driver of the Ford said he looked straight ahead, watching where he was going, but he saw the truck coming 20 feet east of the intersection. This indicates he could observe traffic approaching from his left and that a driver looking ahead had sufficient scope, without turning his head, to observe both to his right and left. It was for the jury to decide whether, under the circumstances, plaintiff was negligent: Carlson v. Homestead Bakery ante p. 323 ( 18 P.2d 244); Stryker v. Hastie, 131 Or. 282 ( 282 P. 1087). Appellant cited Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 ( 133 P. 351), to show that plaintiff may not recover for an aggravation of his previous condition unless it is pleaded.
One who is entitled to the right of way may be guilty of contributory negligence if he heedlessly exercises that right in such a manner than an injury is inflicted upon himself. Stryker v. Hastie, 131 Or. 282 ( 282 P. 1087). We have carefully studied the instructions of the court wherein it construed the ordinance and the above section of our state motor vehicle act and are of the opinion that they conveyed to the jury substantially the same conception of the ordinance and of the state statute as we have set forth above.
Plaintiff would have had the right, if he had seen an automobile approaching at such a distance, to assume that defendant would obey the law and yield the right of way to plaintiff. He was not required to remain on the south side of Hoyt street: Casto v. Hansen, 123 Or. 20 ( 261 P. 428), and cases there cited; Stryker v. Hastie, 131 Or. 282 ( 282 P. 1087). The jury evidently found it difficult to account for the accident except for the rate of speed maintained by defendant's driver of the taxicab.
Hence, in determining whether the two will reach the crossing simultaneously, it has a right to take into consideration an assumption that the car to the right will itself comply with the law when it enters the intersection. The decisions in Casto v. Hansen, 123 Or. 20 ( 261 P. 428); Red Top Taxi Co. v. Cooper, 123 Or. 610 ( 263 P. 64); Gilman v. Olsen, 125 Or. 1 ( 265 P. 439), and Stryker v. Hastie, 131 Or. 282 ( 282 P. 1087), are directly opposed to the defendant's position; to these there could be added a wealth of authority from other jurisdictions. Ramp v. Osborne, 115 Or. 672 ( 239 P. 112), which lends some support to the defendant's contention, was expressly overruled in Casto v. Hansen, supra. The result of the aforementioned adjudications by this court is that in the performance of the statutory duty due care only need be exercised. Simultaneous is not construed in a strict sense; the courts have applied to this word, as well as to the entire section, a rule of construction guided by reason and common sense.
In determining whether plaintiff has violated the right-of-way statute, we determine whether plaintiff acted as a reasonably prudent man under the same circumstances. If reasonable minds could differ upon this issue, we hold it is an issue for the jury. Gilman v. Olson, 125 Or. 1, 265 P. 439 (1928); Stryker v. Hastie, 131 Or. 282, 282 P. 1087 (1929); Dorey v. Meyers, 211 Or. 631, 317 P.2d 585 (1957). The issues of plaintiff's speed and control were also for the jury.