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Stokes v. Lundeen6/21/2000
ay, was within the class of persons meant to be protected by the statute.
Plaintiff's alternative argument, that defendant's injury was not of the sort the statute was enacted to prevent, fails for similar, albeit not identical, reasons. The accident and injuries here occurred, in part, because of a hazard associated with school-related activities--a parent turning into the school to pick up a child. The basic speed rule's 20 mile per hour speed limit anticipates such risks. Here, there was evidence from which the jury could conclude that, but for plaintiff's unlawful speed, the collision either could have been avoided or, at least, its severity reduced. Consequently, defendant made a prima facie showing that her injuries were of the sort the statute was designed to prevent.
Plaintiff argues finally, with respect to negligence per se, that that specification should not have been submitted to the jury because there was no evidence that children were "present" within the meaning of the statute. As noted, plaintiff submitted an instruction defining "children are present," and the court gave that instruction: Children "are present" when they are "in areas where their safety could reasonably be endangered by motor vehicles passing through the school zone." Assuming without deciding the correctness of that definition endorsed by plaintiff, we conclude that defendant presented adequate evidence of "presence" under that definition. For example, the jury could reasonably have found that, notwithstanding the cyclone fence, the boys practicing football on the field north of the school could reasonably have been endangered by speeding vehicles on the adjacent roadway. In sum, the court correctly rejected each of plaintiff's challenges to the negligence per se specifications.
Plaintiff's second assignment of error challenges the trial court's denial of his directed verdict motion against defendant's other three specifications of comparative fault. Without belaboring the record, the direct evidence and the circumstances of the accident amply supported those specifications. See generally Hess v. Larson, 259 Or 282, 289, 486 P2d 533 (1971) ("The elements of speed, lookout and control are interrelated and, in most cases, it is proper if not necessary for the jury to consider them together; independent evidence of each element is not necessary.").
Finally, plaintiff assigns error to the exclusion of Deputy West's testimony. Before the trial court, plaintiff characterized the deputy as an "expert" and contended that "his opinions * * * as to what constitutes a violation of [ORS 811.105(2)(c)(A) (1995)] are extremely--not only relevant, but helpful to the jury to decide what the statute means." As noted above, ___ Or App at ___ (slip at 3), the court excluded that testimony concluding that "it would be more of a legal interpretation than a factual interpretation." We agree. The proper construction of subsection (2)(c)(A) and, particularly, the meaning of the phrase "children are present" was a matter of law for the court to determine and to instruct the jury--as, indeed, it did. The court did not err. See generally Laird C. Kirkpatrick, Oregon Evidence, 418 (3d ed 1996) ("In general, questions of law are for the court and not a proper subject for expert testimony to the jury.").
Affirmed.
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