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Spence v. Rasmussen, 226 P2d 819 (1951). Judgment for defendant, and plaintiff appealed. The Supreme Court of Oregon reversed and remanded for a new trial. A 58 year old bicyclist was riding on a two lane highway with 10 1/2 foot lanes at 6:10 AM, January 26, 1948 (sunrise at 7:20). The bicyclist was wearing a dark Mackinaw and overalls, and had an electric front lamp and red rear reflector. He was carrying newspapers in a white canvas bag on the front of his bike (he was covering his son's paper route). He was riding slightly to the left of the center of his lane. An oncoming diesel type freight truck passed the bicyclist within 200 feet of passing the defendant's truck. The freight truck driver testified that he could see the bicyclist while approaching, and again in his rearview mirror, and that the bicyclist's front head lamp was not burning. The defendant did not see the cyclist until the point of impact, and the bicyclist was killed. The statute applying to bicyclists was that rear lights were permissible and not mandatory; the only requirement was a red reflector visible at night from all distances within 300 to 50 feet from the rear of such a bicycle. Motor vehicles were required to have head lights of specific intensity so as to render visible persons and objects on the highway for at least 100 feet ahead of the vehicle; ergo, the bicyclist's lack of a front light at the time this happened was irrelevant, as there was no evidence the defendant would have seen the light if it had been burning. The oncoming freight truck driver testified that the defendant's lights were dimmed. The defendant argued that the bicyclist should not have been unlit, wearing dark clothing, and riding in the middle of the road at night, and that he failed to keep a proper lookout. The defendant also said the bicyclist should have seen the lights from the overtaking car, and heard the sound of the car's engine. From the Court's opinion: "None of the things mentioned in this argument have any bearing upon the fact of whether or not decedent was maintaining a lookout. It may be assumed that he observed the reflection of the lights on the approaching truck and that he heard the noise it made. If so, it was wholly unnecessary for him to turn his head to look back to note what was coming from the rear. It must be remembered that defendants gave no audible signal by horn or otherwise of the approach of the truck as required by statute if they intended to pass the bicycle. And, in any event, a bicyclist is not required to keep a lookout to the rear unless he is changing his course of travel. He has the right to assume until he knows to the contrary, or until by the exercise of due care on his part he should and would have known to the contrary, that those coming from the rear will observe him and take such precautions as may be necessary to avoid colliding with him, and to act accordingly. Neither a pedestrian nor a bicyclist is required to take to the ditch every time a motor vehicle approaches from behind. They still have some rights on the highway. The lookout required of them is largely confined to the front and to the right and left at intersections. Decedent was not riding in the middle of the road, but on his own right-hand side."
The defendants also tried to argue that the bicyclist failed to keep to the right-hand side, and the court responded with an interesting piece regarding the "as far right as practicable" rule: "Defendants allege decedent was guilty of negligence because he failed to keep to the right-hand edge of said roadway as provided in sec. 115-327 (a, b), O.C.L.A. Under the provisions of sec. 115-305, O.C.L.A., hereinafter quoted, a person riding a bicycle is subject to the provisions of the statutes applicable to the driver of a motor vehicle, except those provisions 'which by their very nature can have no application' to a bicycle. But subdivision (a) of sec. 115-327, which requires that a motor vehicle shall be driven upon the right half of the highway, and subdivision (b) of the same section, which provides that in driving upon the right half of a highway the driver of a motor vehicle shall drive as closely as practicable to the right-hand edge or curb of the highway except when overtaking or passing another vehicle, must be read and considered in the light of the construction placed thereon by this court.
"In Weinstein v. Wheeler, ... this court said: 'Rules of the road similar to ours, which require the operation of automobiles upon the right-hand side of the roadway, do not contemplate strict compliance with their provisions, except when a car meets and passes another coming from the opposite direction.' ...
"As so construed, the statute applies when vehicles are approaching from the front, not from the rear. The primary purpose of the statute is to provide ample clearance between motor vehicles proceeding in opposite directions when passing. Consequently, it follows as a matter of law that decedent was not at the time of the collision violating the provisions of sec. 115-327, for he was not then meeting or passing another vehicle coming from the opposite direction. The [oncoming] truck had met and passed him." |
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