Opinion
78-8308, CA 15359
Argued and submitted April 16, 1980
Affirmed July 14, 1980
Appeal from Circuit Court, Lane County.
Helen J. Frye, Judge.
Alan L. Ludwick, Springfield, argued the cause and filed the briefs for appellant.
Richard A. Roseta, Eugene, argued the cause for respondent. With him on the brief was Flinn, Brown Roseta, Eugene.
Before Joseph, Presiding Judge, and Warden and Warren, Judges.
WARDEN, J.
Affirmed.
Plaintiff appeals from a judgment for defendants in an action for personal injuries suffered by plaintiff in a collision. Plaintiff's vehicle was struck from the rear by a log truck of defendant Stores being driven by defendant Warner. We affirm.
Plaintiff first contends that the trial court erred in refusing to include in its instructions to the jury a reading of ORS 487.235 as requested by plaintiff. There was no error in refusing this requested instruction because there was no issue of careless driving before the jury. Following the presentation of evidence, the court struck the allegation of careless driving from plaintiff's amended complaint. There being no allegation of careless driving for the jury to consider, there was no reason for an instruction regarding the careless driving statute.
ORS 487.235 provides:
"(1) A driver shall not drive a vehicle upon a highway or premises open to the public,* * *in a manner that endangers or would be likely to endanger any person or property.
"(2) A driver who violates subsection (1) of this section commits a Class B traffic infraction."
Plaintiff had not assigned as error the striking of the allegation of negligence based on ORS 487.235.
Plaintiff also contends that the court erred in refusing to direct a verdict in plaintiff's favor. Since Miller v. Harder, 240 Or. 418, 402 P.2d 84 (1965), it has generally been held that issues of negligence in rear-end collision cases should be submitted to juries. In some cases, however, directed verdicts have been held to be proper. Stevenson v. Hole, 269 Or. 530, 525 P.2d 1015 (1974), Simmons v. York, 252 Or. 279, 449 P.2d 645 (1969), and Blanchette v. Arrow Towing Co., 242 Or. 590, 410 P.2d 1010 (1966). Plaintiff asserts that this is such a case. We have reviewed those "rare cases" cited by plaintiff and are satisfied that a directed verdict would not have been justified under the facts of this case.
Affirmed.