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Stokes v. Lundeen6/21/2000
Appeal from Circuit Court, Lane County. Maurice Merten, Judge.
Argued and submitted February 17, 2000, Mt. Angel.
Affirmed.
HASELTON, J.
Plaintiff appeals from a judgment for defendant, following a jury trial, in a personal injury action arising from an auto collision. Plaintiff assigns error to the trial court's refusal to grant a directed verdict against defendant's affirmative defenses that plaintiff was negligent in causing the accident, including a defense that plaintiff was negligent per se in driving "more than wenty miles per hour when passing school grounds [when] * * * hildren are present." ORS 811.105(2)(c)(A) (1995). We conclude, inter alia, that defendant was a member of the class of persons meant to be protected by ORS 811.105(2)(c)(A) (1995), and affirm.
At about 4:30 on the afternoon of September 24, 1996, plaintiff and his daughter were traveling south on Bailey Hill Road, a two-lane highway in Lane County, with a general speed limit of 55 miles per hour. Bailey Hill Road runs north and south, and passes immediately east of Twin Oaks Elementary School. As plaintiff approached the school, he first passed a five-sided "school advance" sign with the silhouette of two children on it and then, closer to the school, passed a sign with the legend: "School--Speed 20 When Children Are Present." Plaintiff slowed to between 40 and 50 miles per hour.
As plaintiff's van approached the school from the north, defendant was approaching the school from the south to pick up her seven-year-old daughter from a Brownie meeting. Defendant slowed to turn into the driveway just south of the school. Because of a rise in the road, it is difficult to see oncoming traffic at that point. Defendant then turned in front of plaintiff's oncoming van, and the vehicles collided in "t-bone" fashion. Both plaintiff and defendant were seriously injured.
When plaintiff drove through the school zone, immediately before the collision, "more than 10" boys were outside on a football field north of the school. That field is adjacent to Bailey Hill Road and separated from the road by a cyclone fence. Another 23 children, who were in day-care, were on a playground visible from the road, adjacent to the northwest wing of the school. Three girls in the Brownie group were standing with the adult group leader, outside a cafeteria door on the southeast side of the school. One boy was walking with his father to the parking lot on the school's southwest corner. Finally, just opposite the collision site, on the east side of Bailey Hill Road, two children were playing on a pyramid play structure on their grandparents' property. Plaintiff testified that he did not see any of the children on the school property or the children on the pyramid.
In August 1997, plaintiff filed this action, alleging that defendant's negligence had caused the accident. Defendant answered, alleging as a first affirmative defense:
"At the time and place of the accident described in the plaintiff's complaint, plaintiff himself was careless and negligent in one or more of the following particulars:
"(a) In operating his automobile at a speed that was greater than reasonable and prudent, having due regard to the existing traffic conditions;
"(b) In traveling at a rate of speed greater than the posted speed of 20 mph in violation of ORS 811.105(1)(c);
"(c) In failing to keep a proper lookout; and
"(d) In failing to maintain proper control over his automobile."
At trial, plaintiff sought to present testimony from Art West, a Lane County Deputy Sheriff, that, under circumstances approxim
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