BAILEY, J.
The plaintiff, Clyde L. Kiddle, instituted this action against S. Schnitzer and others to recover damages for personal injuries suffered by him as the result of a collision between an automobile operated by the plaintiff and a truck and trailer operated by and on behalf of the defendants. From a judgment entered on a verdict in favor of the defendants the plaintiff appeals.
The accident occurred on November 6, 1938, about five-thirty o'clock in the evening, approximately six miles west of Pendleton on a part of U.S. highway No. 30 commonly referred to as the Pendleton cut-off. This part of the highway has an oiled surface twenty feet wide, with graded shoulders on each side three to four feet wide. The truck and trailer and the car operated by the plaintiff were proceeding in a westerly direction. The collision took place on straight road over a "nearly level" stretch of land with possibly "a little incline or grade," as the plaintiff described it, approximately six hundred feet westerly from the crest of a hill over which the highway passes.
The trailer was loaded with steel rails and pipes, which extended some five or six feet beyond the end of the trailer. There was evidence that there were two clearance lights and a tail-light on the truck and a rear reflector on the trailer. The accident happened about one hour after sunset, in clear weather with visibility good and the pavement dry. The plaintiff was driving at what he termed his usual rate of about forty-five miles an hour. The truck was slowing down to five or ten miles per hour, preparatory to stopping in response to a signal from a state police officer.
The plaintiff's car crashed into the rear end of the trailer. Both vehicles were on the right side of the highway and there was no other vehicle or obstruction on the left side. The tires of the plaintiff's car made deep skid marks on the pavement for a distance of eighty feet up to the point of impact. The marks were parallel with the yellow middle line of the highway. The front end of the car was completely wrecked and the plaintiff suffered serious bodily injuries.
The complaint alleges that the defendants were negligent in failing to have the statutory lighting equipment on the rear of the truck and trailer and on the end of the overhanging load. The answer charges the plaintiff with contributory negligence in five particulars, namely: 1. Excessive speed, more than sixty miles per hour. 2. Failing to have his automobile under control. 3. Failing to keep a proper lookout. 4. Failing to slow down and stop his automobile or swerve the same to the left to avoid striking the truck. 5. Driving his automobile while equipped with defective and insufficient lights.
One of the assignments of error here urged is the failure of the court to withdraw from the consideration of the jury the specification of contributory negligence in regard to defective and insufficient lights on the plaintiff's car. The plaintiff asserts that there is no evidence in the record to support this allegation of contributory negligence.
In describing the accident, the plaintiff testified on direct examination as follows:
"Q. Now, will you relate to the jury just what happened after you came up over the hill? A. I came up over the hill and traveled for a short distance. This truck loomed up ahead of me and I applied my brakes."
He further stated that both the front lights of his car were burning "bright" and that he did not observe any lights or reflectors on the truck or trailer. On cross-examination the plaintiff thus testified:
"Q. What were you doing as you came up over the crest of the hill? Was there anything to divert your attention? A. No, sir.
"Q. About how far were you away from the truck when you saw it, Mr. Kiddle? A. I couldn't estimate it. It loomed up ahead of me and I slammed the brakes on.
"Q. Slammed on your brakes, you think, immediately; is that right? You slammed on your brakes when you saw it? A. Yes, sir, as quick as I saw the truck.
"Q. Just as quick as you saw the truck? And then you say you lost consciousness? A. With the impact, when I hit the truck. Q. When you hit the truck. But from the time that you observed it, first observed it, you noticed the overhang of this load? A. Yes, sir. Q. All of those matters? A. Yes, sir, just before I hit the truck I noticed that.
"Q. Do you have any idea what the distance ahead is of your lights, your lights' ability to illuminate the road; that is, how far ahead the headlights of your car throw their beams? A. No, I haven't. A Chevrolet car and I suppose it was about like any other Chevrolet car. I know the lights were good and hadn't caused any trouble.
"Q. Did you make any attempt to turn out at all, Mr. Kiddle? A. I didn't have time."
The plaintiff, at the time of the accident, was required to have head-lamps of his motor vehicle so "constructed, arranged, and adjusted that" they would at all times, under normal atmospheric conditions and on a level road, "produce a driving light sufficient to render clearly discernible a person two hundred" feet ahead: § 55-2603, Oregon Code 1935 Supplement. In this connection, the plaintiff testified that the truck "loomed up" ahead of him and that "as quick as" he saw it he "slammed on" his brakes. He did not have time after seeing the truck to swerve his car, to avoid striking it. There was nothing, he testified, that diverted his attention from the highway in front of his car. There was no direct evidence as to the distance ahead of the plaintiff's car that the headlights thereof would make a man clearly discernible to the driver of the car. The plaintiff stated that he had no such knowledge. He testified also that he could not estimate how far the truck was away from him when he first saw it. The record shows the distance he traveled after he applied his brakes, and the condition of his car gives evidence of the force of the impact.
With the plaintiff's car maintaining a speed of forty-five miles an hour and the truck proceeding at only five miles an hour at the time of the collision, the plaintiff's car must have traveled in excess of two hundred twenty-five feet after first coming within two hundred feet of the truck and before overtaking it. However, the speed of both vehicles was being decreased, that of the car probably more rapidly than that of the truck, which is mentioned as five to ten miles an hour at the time of the collision; and the distance that the plaintiff's car would travel before overtaking the truck was accordingly greater than two hundred twenty-five feet.
The question raised by the plaintiff's assignment of error hereinabove mentioned is whether the jury could, from all the facts before it, draw the inference that the plaintiff's car was "equipped with defective and insufficient lights". Whether the plaintiff was guilty of contributory negligence was a question for the determination of the jury. In arriving at its conclusion, the jury might have been of the opinion that the plaintiff was driving not in excess of forty-five miles an hour, as testified to by him; that his attention had not been diverted from the highway; that he was keeping a lookout; and yet that his failure to see the truck and trailer in time to avoid striking the latter was due, in part at least, to his own negligence.
The plaintiff testified that he did not see the truck in time to avoid a collision. Whether his failure or inability to stop was due to excessive speed of his car, inattention on his part, poor visibility, a combination of those factors, or some other cause, was a question for the jury. The visibility possible to a driver at night is largely dependent upon the sufficiency of the headlights on his car to make discernible objects on the roadway.
There is no direct evidence that the plaintiff actually did see or could have seen the truck at a distance of two hundred feet. From the facts proved, the jurors might well have reasoned, out of common knowledge and their own experience, that defective or insufficient headlights on his car prevented the plaintiff from seeing the truck sooner than he did: §§ 2-402 and 2-404 O.C.L.A. In order to reach this conclusion, it was not necessary to base inference on inference. No error was committed by the trial court in refusing to withdraw from the jury the question of the condition or sufficiency of the headlights on the plaintiff's automobile.
In Barry v. Tyler, 171 Va. 381, 199 S.E. 496, the plaintiff's intestate was a guest in a car which struck the rear end of a parked truck. The driver of the car testified that he was traveling between thirty and thirty-five miles an hour, on the right side of the road, "and all of a sudden a big blur appeared", and that he turned to the left but could not avoid striking the truck. He further testified that he was looking ahead but saw no warning light. No evidence was introduced on behalf of the defendant. The court charged the jury that the law required motor vehicle lights to be capable of revealing a person or object two hundred feet ahead, and that if it found that the car was not so equipped or that the lights were not burning, and that such failure was the sole and proximate cause of the accident, it should return a verdict for the defendant. The jury found in favor of the defendant. With reference to that instruction the appellate court said:
"Tyler testifies that though he was looking, he did not see the truck. Thus the lack of visibility is offered as a fact. From that fact, natural inferences may be drawn. A reasonable inference is that the headlights of the Ford car did not come up to the requirements of the statute.
"Inferences drawn from physical facts may be as strong as direct evidence. Such inferences amount to circumstantial evidence. Facts may be proven by circumstantial evidence as well as by direct evidence. An instruction can be based on inferential or circumstantial evidence."
Error is assigned on the refusal of the circuit court to give a requested instruction with reference to an emergency, with which the plaintiff now contends he was confronted when he first saw the truck and trailer in front of his car.
It is a well-established rule that an automobile driver who, by the negligence of another and not by his own negligence, is suddenly confronted with an emergency and is compelled to act instantly to avoid injury or damage, is not guilty of negligence if he makes such a choice of action as might be made by a person of ordinary prudence, under like circumstances, even though his decision proves not to have been the wisest possible: 5 Am. Jur., Automobiles, § 171, page 600. When the emergency has arisen through the driver's own negligence, he can not rely upon it to excuse his consequent action: Dickson v. King, 151 Or. 512, 49 P.2d 367; Hornby v. Wiper, 155 Or. 203, 63 P.2d 204; 5 Am. Jur., supra.
In 5 Am. Jur., at page 601, it is said:
"The sudden emergency doctrine is not an exception to the general rule; the question is whether the defendant acted as an ordinarily prudent and careful person would have done under the same circumstances, and the emergency is one of the circumstances contemplated by the rule. If the defendant's course was one that an ordinarily prudent and careful driver put in such a position might have taken, he is relieved from liability; otherwise he is not."
The trial judge, after explaining the issues in the case, further instructed the jury as follows:
"Now, negligence has been defined and recognized as the doing of an act that an ordinarily prudent person would not have done, or the failure to do such an act that an ordinarily prudent person would have done under the same or like circumstances. In other words, it is a measure of conduct and that measure is not the highest degree of care nor is it satisfied by the lowest degree of care. It is that care which the ordinary person would exercise under the same or similar circumstances."
The foregoing instruction covered, in a general way, the degree of care required under all circumstances, which would include an emergency. The instruction did not, however, specifically discuss emergency or particularize as to the degree of care to be expected in such case. As was said in Nordlund v. Lewis Clark Ry. Co., 141 Or. 83, 92, 15 P.2d 980:
"The judge who presides over the trial and sees the manner in which the issues develop, whether they are mentioned in the pleadings or not, is best able to know what instructions are needed by the jury to produce a verdict in harmony with the law, and thus much must be left to his direction."
In Murphy v. Read, 157 Or. 487, 72 P.2d 935, error was assigned on the refusal of the court to give a requested instruction on unavoidable accident. In holding that no error was committed in that respect, this court stated that such an instruction would have been merely a repetition of the general charge of negligence. There is considerable doubt in the case now before us whether there was an emergency not due to the plaintiff's own negligence. The judge who presided over the trial, in a written opinion denying the motion for a new trial, with reference to his refusal to give the plaintiff's requested instruction, observed:
"After a review of the record in this case, the entire transaction, it seems to the court, was one which does not make applicable the question of an emergency. As a matter of fact, all these automobile accidents might be deemed emergencies. Very few are premeditated and these are cases of wilful and intentional wrong, so that the court does not feel that the question of emergency was to be emphasized in this particular transaction. The general rule of ordinary care was applied and the jury was instructed that the degree of care was commensurate with the dangers reasonably to be apprehended."
It is within the sound discretion of the trial judge whether to enlarge upon any particular subject covered by general instructions. There are instances in which refusal to give a specific instruction on the emergency rule would constitute reversible error. In the case before us, although it possibly would not have been erroneous to give an instruction on emergency, nevertheless the failure to give such an instruction, in the light of all the facts in the case, can not be said to be an abuse of discretion. To hold in this instance that the circuit court should have instructed the jury with particular reference to the emergency doctrine would establish a precedent requiring a similar instruction to be given, if requested, in practically every case involving a motor vehicle accident.
We have carefully examined the entire charge given by the court to the jury and have found nothing therein which overemphasizes contributory negligence.
No error appears in the record, and the judgment appealed from is accordingly affirmed.
BAILEY, J.
The appellant in his petition set forth six reasons why this court should grant him a rehearing. They are the following:
"1. The court erred in holding that there is evidence in the record to support the allegation of contributory negligence in that the plaintiff was driving his automobile while equipped with defective and insufficient lights.
"2. The court erred in holding that there was a taillight on the truck and a rear reflector on the trailer.
"3. The court erred in holding that there was no other vehicle or obstruction on the left side of the highway at the scene of the accident.
"4. The court erred in holding that plaintiff's request that the jury be instructed upon the doctrine of sudden emergency was properly refused.
"5. The court erred in holding that the defendants' theory of the case alleging contributory negligence was not over-emphasized.
"6. The court erred in holding that the trial court might, upon the mere proof of the happening of the accident alone, and in the absence of any proof that the plaintiff was negligent in any respect, submit the issue of plaintiff's contributory negligence to the jury."
A rehearing was had. Only one of the above-mentioned grounds for requesting a rehearing was discussed in the petitioner's brief or touched upon in the oral argument. That was our holding that the trial court did not err in submitting to the jury the question of the insufficiency or defectiveness of the lights of the plaintiff's automobile.
The fourth and fifth grounds assigned in the petition are fully covered by the original opinion. As to the second and third grounds, there was evidence from which the jury could have found that there were lights on the truck and both lights and a reflector on the trailer, and could further have found that there was no vehicle or obstruction on the left side of the highway at the scene of the accident.
In order to ascertain what are the questions presented to this court on appeal, we are guided by the assignments of error contained in the appellant's opening brief. Only three assignments were mentioned by the appellant herein, namely:
"I. The court erred in submitting to the jury the question of the sufficiency of plaintiff's headlights . . . and in refusing plaintiff's requested instruction Number 7 a, withdrawing from the jury's consideration the allegation relative to the sufficiency of plaintiff's lights.
"II. The court erred in refusing to give plaintiff's requested instructions Numbers 6 and 7, relative to sudden emergency.
"III. The court erred in over-emphasizing defendant's theory of the case by reiterating instructions in reference to contributory negligence."
The principal question left for consideration is whether there was substantial evidence from which the jury could find that the plaintiff's headlights were either defective or inadequate. Before discussing this matter, it is advisable to refer to the testimony in the case as to the lights and reflectors on the defendants' truck and trailer.
The defendant Carroll, driver of the truck at the time of the accident, testified that he had left Pendleton about four o'clock in the afternoon and that the accident occurred about five-thirty-five. He then gave the following testimony:
"Q. And what about the lights? Tell the jury what lights there were on the truck when you left there. A. There were two clearance lights and the taillight and the reflector on the rear and then I had my front clearance lights and my headlights.
"Q. Now, what about the rear lights and rear reflector? A. Well, the clearance lights were on the bolster and the rear taillight was on the end of the reach and the reflector was right beside the taillight on the reach.
"Q. This reach is the thing that sticks out from the rear of the truck, is it? A. Yes, sir. A. About how far from the rear of the axle does this reach stick out? A. Well, from the back of the trailer itself, about five feet.
"Q. And what happened to your lighting equipment on that as a result of the accident? A. Well, I had the taillight and one clearance light knocked out. Q. As a result of the accident? A. Yes, sir.
"Q. Where did your reach come, that is, extending the rear of the truck, how was it with respect to the end of your load? A. It was just even. Q. It was about five feet out, too; is that right? A. Yes."
Mr. Fitch, who was a service station operator at Pendleton, Oregon, testified that the defendants' truck and trailer were at his place of business most of the day of the accident, undergoing repairs. He stated that he had observed the lighting equipment, "checked all of the lights" on the truck and trailer, immediately prior to Carroll's leaving Pendleton. This further testimony was then given by him:
"There were two dimension lights on the back of the trailer at the outside of the steel bolster, both burning at that time, and there was a taillight on the reach and a reflector on the end of the reach also, both the reflector and light were on the reach; on the front of the truck there were two amber lenses and on the rear-view mirror of the truck there was another amber lens in the truck, definitely to define the side of the truck itself for a passing car to go around it."
On cross-examination this witness testified that the clearance lights on the truck and trailer and the taillight on the end of the trailer were all burning when the truck left his station. He also stated that the taillight on the trailer was "on the same lighting arrangement with the clearance lights on the trailer."
According to the weather report introduced in evidence, the sun set at Pendleton on the day of the accident, November 6, 1938, at four-thirty-six o'clock.
A state police officer called as a witness, on cross-examination by plaintiff's counsel, gave the following testimony:
"Q. Mr. Brittingham, were there any load chains on this load? A. Yes. Q. I will ask you whether or not they obscured the rear lights, if any there were, on the bed, that is, on the truck itself or on the trailer itself. A. Well, they partly obscured the clearance lights.
"Q. How about the rear lights? A. They had only reflectors on the back of the trailer. Q. Didn't have any rear lights on the back of the trailer? A. No."
The testimony of this witness differs somewhat from that of the truck driver and the service station operator, as to the location of the reflector on the trailer and the presence of any light on the trailer. It is not our function, however, to resolve the conflicts in testimony. That is the province of the jury. It is sufficient to say that there was evidence from which the jury could have found not only that there was a reflector on the end of the trailer, which was not concealed by any overhanging load, but also that there were lights on the rear of the trailer and on the sides of the truck and the trailer.
It is not our purpose here to restate what was said in our former opinion regarding the sufficiency of the evidence to place before the jury the question of adequacy of the headlights on the plaintiff's automobile. The collision which caused the plaintiff's injury was the result of his driving his car into the rear end of another vehicle ahead of him on the highway. According to his own testimony, the plaintiff did not see the defendants' truck and trailer in time either to stop his car or turn it to the left side of the highway. If he had seen the truck at a distance of two hundred feet prior to the collision, he undoubtedly would have had time to steer his car to the left and avoid striking it, or to bring his car to a stop, if not traveling at a speed greater than that to which he testified, forty-five miles an hour. The further fact that the plaintiff did not see the reflector on the end of the trailer is some evidence that he either was not keeping a proper lookout or that his headlights were defective.
It is true that the plaintiff testified that his car was a Chevrolet about three and a half months old, driven some seven thousand miles, and that he supposed that his automobile was "about like any other Chevrolet car. I know the lights were good and hadn't caused any trouble." He further stated that at the time of the accident his lights were turned on "bright". No evidence was produced of any inspection made of his lights. He did not know the radius of their beam. Nor did he know how far the truck was ahead of him when he first saw it.
In 2 Berry on Automobiles, 7th Ed., § 2.932, page 443, is the following statement: "It has been held to be negligent for the driver of an automobile to drive on a highway at night at such a rate of speed that he can not stop in time to avoid objects after they come within the area lighted by his lamps." Cases from many states supporting the text are cited below this section, both in the permanent volume and in the pocket supplement.
In 1 Blashfield's Cyclopedia of Automobile Law and Practice, Perm. Ed., § 741, decisions from many jurisdictions are cited to the proposition that "the rule accepted by the great weight of the authorities is that a driver is not exercising ordinary care and is negligent, if he proceeds at such a speed in the dark that he can not bring his automobile to a standstill within the distance that he can plainly see objects or obstructions ahead of him by the light of his own lamps or other available light."
The great preponderance of the authorities is to the effect that a plaintiff driving his car as did the plaintiff in this case would be chargeable with contributory negligence, barring his recovery. The defendants were invoking this latter doctrine in making the following argument in their brief:
"Thus, the evidence is practically conclusive that he did not see the truck at the statutory distance of 200 feet. The only alternative inferences are that either he was not keeping a proper lookout or else his lights were not adequate for that distance. Either horn of this dilemma brands him guilty of contributory negligence, and in the latter case it was negligence per se."
We do not now hold, and did not in our original opinion decide, that the plaintiff was guilty of contributory negligence, or any negligence. We now hold, and did then rule, that whether the plaintiff was chargeable with any negligence and whether that negligence, if any, contributed to his injury, were questions for the jury. This court has not adopted the majority rule above stated, but what seems to be the minority rule that the question of the plaintiff's contributory negligence is for the jury. See Alt v. Krebs, 161 Or. 256, 88 P.2d 804, and cases therein cited.
In Baldwin v. Norwalk, 96 Conn. 1, 112 A. 660, the defendant city urged that the plaintiff, who was injured when his automobile collided with a substantial object in a street at night, because of defective lights, was guilty of contributory negligence. It was argued by the defendant that the plaintiff either did not have the lights required by statute and hence failed to see the object, or saw the object and did not avoid striking it. In answer to that contention the court said:
"We do not construe the statute so as to create this dilemma. The statute must be construed in the light of common knowledge. It is common knowledge that substantial objects because of their composition or coloring, and the coloring of the surface or object upon which they rest, are visible in greatly varying degrees when artificial light is thrown upon them. They are not necessarily clearly visible.
"The plaintiff claimed that he was keeping a reasonable lookout upon the road ahead of him, but, by reason of the dark color of the mass of debris and the lights and shadows, he did not see the pile of debris of which he had no prior knowledge. It was a question for the jury to determine whether the plaintiff had at the time the lights required by statute, and whether a failure to have such lights was a proximate cause of the accident, and whether, if he had such lights, he was in the exercise of due care in failing to see and avoid the pile of debris under the surrounding circumstances on the night in question."
Mostov v. Unkefer, 24 Ohio A. 420, 157 N.E. 714, is typical of the cases of relaxation of the majority rule, above mentioned, declaring the plaintiff guilty of contributory negligence as a matter of law because of failure to stop his car within his range of vision. Therein the defendant was a dealer in paper stock and scrap iron. The driver of one of the defendant's trucks late in the afternoon ran short of gasoline and left the truck parked on the right side of the pavement while he went to get gasoline. In that instance, differing from the case at bar, the truck was stopped and there were no lights on it. A passenger automobile collided with the rear of the truck. The driver of that car testified that he could see a substantial object two hundred feet ahead and that he actually saw the truck when seventy-five or one hundred feet distant from it and could have stopped his car within thirty to fifty feet. He explained the collision by saying that he was "constantly keeping a lookout ahead" and that when he saw the truck he applied the brakes of his car as quickly as he was able.
In passing upon the question of whether there should have been a directed verdict for the defendant, the court said:
"Are we able to say, as a matter of law, that the driver's explanation was untrue or impossible? If not, then it is for the jury to determine its truth and probability. The plaintiff testified that the truck was not a substantial object, and the jury found, in answering one of the interrogatories, that it was not. The court, it seems, did not define the meaning of that term, within the meaning of the Michigan statute. However that may be, it seems to us that the driver might have been exercising ordinary care in keeping a lookout ahead, and the background of the truck, its peculiar construction, and the reflection of the light thereon might have been such that it was impossible for the driver to discern it, by the exercise of such care, until he approached to within 70 or 100 feet."
The court concluded that in the light of the facts therein stated the question of whether the driver of the passenger automobile was contributorily negligent was for the jury.
The defendant in Kadlec v. Al. Johnson Construction Co., 217 Iowa 299, 252 N.W. 103, at the conclusion of the trial moved for a directed verdict in its favor, on the ground that the plaintiff was guilty of contributory negligence. The motion was granted, and on appeal the supreme court reversed the judgment, holding that in view of the facts the question of whether the plaintiff was chargeable with contributory negligence was for the jury. Among the facts offered in evidence by the plaintiff to establish an excuse for his "violation of the `assured clearance distance ahead statute'" were "the color of the truck, blending with the color of the roadway, the lights and shadows from the overhanging tree branches cast upon the street, and the oncoming lighted car." In ruling that the evidence in the case made the question of the plaintiff's contributory negligence one of fact rather than law, the court said:
"Although a wire stretched across a street or sidewalk or small stake attached to an unlighted truck in the roadway may be undiscernible because of its size, it might also be possible for an unlighted object on the highway to be undiscernible, if so camouflaged by color, lights and shadows that it blends in with the highway as to make it appear like part of the road. In such case it might not be clearly discernible by persons approaching it, although exercising ordinary care, and, if not, a jury question as to its visibility might properly arise." (Italics supplied.)
The court of appeals of Louisiana in Holcomb v. Perry, 19 La. A. 11, 138 So. 692, held that on the facts in that case the plaintiff was not negligent in not seeing an unlighted automobile parked along the side of a highway. The trial court had found for the defendant, and the appellate court retried the facts and entered judgment in favor of the plaintiff. Upon investigation of the constitution of Louisiana we have found therein no provision similar to that of the Oregon constitution regarding jury trials. To the contrary, in Louisiana all cases before the court of appeals "shall be tried on the original record, pleadings and evidence" (article VII, § 27, constitution of Louisiana), and "all appeals shall be both upon the law and the facts" (article VII, § 29, id.). We do not construe the decision of the appellate court as stating that the plaintiff was, as a matter of law, not chargeable with contributory negligence.
The reports are replete with decisions pronouncing plaintiffs guilty of contributory negligence as a matter of law when unable to see substantial objects on or near the highway in time to avoid a collision. Many of these adjudications concern vehicles parked at night without lights.
There are other cases which relax the above-mentioned stringent rule and hold that under peculiar circumstances the question of the plaintiff's negligence is one of fact for the jury. We have found no cases ruling that as a matter of law the plaintiff is not guilty of contributory negligence.
It is now urged by the appellant that he could not have seen the truck sooner than he did because the accident occurred just after he reached the crest of a hill, and that, therefore, his headlights would not have shone on the truck and trailer. The only testimony in this connection is that of the plaintiff himself, describing the place of the accident as approximately six hundred feet or two hundred yards westerly from the crest of a hill. If the accident occurred as suggested by plaintiff's counsel, then there was all the more reason why the plaintiff should have been alert to what might lie ahead of him and should have slackened the speed of his car. There were, however, introduced in evidence by the plaintiff, as the defendants' exhibits, two photographs, one, as explained at the trial by plaintiff's counsel, looking westward, and the other eastward.
The latter view shows the highway for a considerable distance, as indicated by the number of telephone poles in sight, ten clearly visible and others less distinct, which we may assume to be placed at the usual intervals. This photograph tends to support the plaintiff's estimate of the distance between the crest of the hill and the place of the accident as six hundred feet, or even more. In explaining it at the time it was admitted in evidence, counsel for the plaintiff stated: "Number five here is looking back toward Pendleton and the hill about which we have been talking is just beyond the horizon there. In other words, it isn't shown in this picture. The hill that we had been talking about, that is the top of it there."
Exception is taken by counsel for the plaintiff to the statement in our former opinion that "there was no other vehicle or obstruction on the left side" of the highway. At the time of making that statement we had in mind the fact that the state police officer's car was parked a short distance west of the truck, facing eastward. The officer testified that he parked his automobile "off the roadway . . . clear off the roadway," and left only his parking lights burning. He further testified as follows:
"Q. Was the left side of the highway obstructed at all, officer? Was there anything to keep that car from turning out and going around the truck? A. No, there wasn't."
The plaintiff was asked if he made any attempt at all to turn out, and answered, "I didn't have time." Nowhere in the record is there testimony of the plaintiff that he saw the officer's car or its lights. Since the truck was between the plaintiff and the officer's parked car, the plaintiff would probably have seen the truck if he had seen the lights of the car. He does not say that he saw the lights on the police car parked west of the truck, much less that they blinded him or deterred him from turning to the left to avoid the truck.
It is the province of the jury to pass upon questions of fact. There is substantial evidence in the record from which the jury could have found that the defendants were not negligent, but that the plaintiff was negligent and was not entitled to recover. We do not know on what basis it reached the conclusion announced in its verdict. The mere fact that plaintiff suffered injuries was not alone sufficient as a ground for finding that the defendants were negligent and that their negligence was the proximate cause of the accident. The mishap occurred on a straight and level length of a newly constructed, modern highway, on a clear night with visibility of thirty miles. We ought not to permit ourselves to usurp the function of the jury and substitute our conjecture for its findings.
After carefully reconsidering the assignments of error set forth in the appellant's opening brief and weighing the reasons advanced for requesting a rehearing, we are convinced that the circuit court committed no error in the respects urged by the appellant.
There is this further matter to be considered: Should this court reverse the judgment appealed from because of the trial court's giving a certain instruction, even if erroneous in part, and its failure to give an instruction requested by the appellant, in the absence of any assignment of error based thereon and in view of the state of the record presently to be mentioned? The instruction given was the following:
"You are instructed that the law requires the plaintiff to have his automobile equipped with lights which would throw sufficient light ahead to make clearly visible all vehicles, persons, or substantial objects upon the roadway within distance of two hundred feet. Likewise you are instructed that if you find from the plaintiff's testimony that he failed to have his car equipped with lights sufficient to make clearly visible the defendants' truck at a distance of two hundred feet, then the plaintiff would be negligent and could not recover."
When this instruction was given, the plaintiff thus excepted:
"The plaintiff excepts to the instruction of the court upon the issue of lights upon the plaintiff's automobile for the reason that there is no evidence in the record which shows that the plaintiff's lights were not proper, and surely no evidence in the record adduced by the defendants or any one else in this case that the lights were improper or otherwise incorrect under the allegations of defendants' answer."
The law in effect at the time the accident occurred required motor vehicles driven on highways to be equipped with head lamps "so constructed, arranged and adjusted that" they would at all times, under normal atmospheric conditions, and on a level road, "produce a driving light sufficient to render clearly discernible a person two hundred" feet ahead: § 55-2603, Oregon Code 1935 Supplement. After the accident occurred and before the case was tried, this law was amended to provide as follows:
"The intensity of the light of single-beam head lamps shall be sufficient to reveal persons and vehicles upon a street or highway at a distance of at least 200 feet ahead of the vehicle to which they are attached." § 115-370, subdivision c (2), O.C.L.A.
It will be noted that the law in effect at the time of the accident stated only that persons should be discernible and did not mention vehicles, whereas the amendment of 1939 added vehicles.
The plaintiff did not call the attention of the trial court to the fact that the instruction given was apparently based on the 1939 law instead of § 55-2603, supra. In fact, the appellant has at no time complained of the instruction on that ground. If the mistake had been noticed by plaintiff's counsel, it would undoubtedly have been regarded as harmless. Obviously, a light sufficient to make a person discernible at two hundred feet would as clearly reveal as large an object as a truck or a trailer at the same distance.
The instruction as given also stated to the jury that if it found from the plaintiff's testimony that he failed to have on his automobile lights sufficient to make discernible the defendants' truck at a distance of two hundred feet, then the plaintiff would be negligent and could not recover. In the instruction should have been included this condition, "and if his negligence contributed to his injury," preceding the last four words, "he could not recover."
These defects were not mentioned in the plaintiff's exception to the instruction, nor was the exception taken in respect to either. Moreover, they were not, as above stated, mentioned in any assignment of error or discussed in any brief of the appellant. We therefore have a situation in which the trial court was not given an opportunity to correct its instruction in the manner indicated, and the defendants have not had an opportunity to present any argument as to whether the omission was prejudicial in view of the facts in the case and the remainder of the charge given by the court.
We see no reason why we should zealously search, sift and winnow the record to find some ground for reversing the judgment of the circuit court rendered on the verdict of a jury. It has been held so many times by this court that only error properly assigned will be considered on appeal that it is needless to cite authorities on the point. We have also held, times innumerable, that in order to raise any objection to an instruction given by the court, exception must be properly taken during the trial and the court given an opportunity to make correction.
We do not believe that the jury was misled in any way by the giving of the above-mentioned instruction. The court not once, but three times, in the twenty-one pages of its charge, admonished the jury that the plaintiff's negligence, if any, must have contributed to his injury to prevent him from recovering.
The plaintiff requested the court to instruct the jury "that the driver of a motor vehicle in the absence of notice to the contrary, has a right to assume that other persons using the highway will obey the requirements of the motor vehicle law." To the failure to give this instruction the plaintiff excepted. He did not, however, assign as error the court's failure so to instruct the jury, nor has he mentioned it in any of his briefs.
In 4 C.J.S., "Appeal and Error", § 1239, page 1734, with reference to the exception made in some jurisdictions to the rule that only error assigned may be considered on appeal, by permitting the appellate court to notice error not assigned but apparent on the face of the record, this is said:
"Under an exception dispensing with the necessity of an assignment of error in the case of `an error of law, apparent upon the face of the record,' the appellate court may and must consider errors coming within the terms of the exception without their being assigned. Such an exception, however, does not comprehend every error which can be ascertained by looking into the record, but means that it must be `a fundamental error, such error as being readily seen lies at the base and foundation of the proceeding and affects the judgment necessarily,' or, as otherwise expressed, `such manifest error as when removed destroys the foundation of the judgment.' Moreover, an alleged error which depends upon an examination of the evidence or upon a mixed question of law and fact, and which requires an examination of the whole record, including the pleadings and the evidence or statement of facts, is not as a rule a fundamental error of law apparent on the record which must be considered without being assigned under such an exception."
See also 3 Am. Jur., "Appeal and Error", § 770, page 332.
Our conclusion is that the judgment appealed from should be affirmed, and we adhere to our former opinion.