ASHLAND v. PACIFIC POWER & LIGHT CO. et al, 239 Or. 241

PERRY, J. This is an action brought by the plaintiff seeking damages for personal injuries claimed received in an automobile collision. The plaintiff Dorothy Ashland was a passenger in an automobile being driven by the defendant Manley Suess which collided with an automobile being driven by a Mr. Chatfield, who is not a party to this action. The defendant Hugh Carter was an employee of the State Highway Commission and was charged with the duty to install and maintain traffic control signs on state highways in Lane county.

The defendant Pacific Power & Light Company is a corporation engaged in the distribution of electricity in the state of Oregon. After the issues had been tried, the trial court entered a judgment of involuntary non-suit in favor of the defendant Pacific Power & Light Company, and the jury returned verdicts in favor of the defendants Carter and Suess, upon which verdicts judgments were entered. Prom the judgments entered the plaintiff appeals. The collision in which the plaintiff was injured occurred about noon August 7,1961, at the intersection of Territorial Road and Bolton Road in Lane county.

At the time of this occurrence, Territorial Road was a paved two-lane through arterial state highway, running generally north and south. Bolton Road intersects Territorial Road in a rural area about 15 miles west of the city of Eugene. Territorial Road being a through highway, traffic entering from Bolton Road was directed by stop signs to stop before proceeding into the intersection. The defendant Suess, driving in an easterly direction on Bolton Road in his station wagon, failed to stop before proceeding into the intersection and his vehicle was struck by a vehicle driven by Mr.

Chat-field, which was proceeding southerly on Territorial Road. We will first consider the plaintiff’s contention that the trial court erred in granting the defendant Pacific Power & Light Company’s motion for a judgment of involuntary non-suit. The plaintiff charged the defendant Company with being negligent “in constructing and maintaining the stubbed pole in a position that hid the view or interfered with the effectiveness of the Stop Sign” erected by the state highway commission which directed vehicular travel in a westerly direction on Bolton Road to «top before entering Territorial Road.

The power pole was braced or supported by the placing of a short or -stubbed pole -on its westerly side in a perpendicular position -and the power pole was fastened to the stubbed pole. It should be noted that this stubbed pole was lower than the stop sign itself so that the stubbed pole did not interfere with the view of the sign by the driver of an automobile approaching the intersection from the west.

The plaintiff’s evidence discloses that the power pole never completely obscured the stop sign from the view -of the driver of an automobile from a distance of 313 feet east of the sign, but that it was partially obscured until the driver reached a point 163 feet from the sign where the entire sign was clearly visible. The plaintiff’s position is that the Power Company owed to the traveling public a common-law duty not to obscure in any manner a stop sign, since such action would create a trap for the unwary traveler.

Assuming this to be a valid -argument, the argument would, in our opinion, only have merit if the facts disclosed that the Power Company had erected the obscuring object after the stop sign had been placed in operation. The evidence in the record discloses that the pole was placed and maintained in its position long before the stop sign was erected. By statute, the right to designate the erection and location of -stop signs is left entirely to the discretion of the State Highway Commission. ORS 483.040.

At common law, an abutting landowner was not required to remove or guard against dangerous conditions which existed prior to the dedication of a highway. Restatement, 2 Torts 996, § 368. By 'analogy, it appears to us that no duty is placed upon an abutting landowner to remove a lawfully constructed structure after the state through its commission has decided to erect a stop sign, even though the prior structure interferes with the operation of the sign.

The plaintiff also contends that the defendant Power Company violated OES 483.138(1), which reads as follows: “No person shall place, maintain or display upon or in view of any street or highway, any unofficial sign, signal or device which purports to be or is an imitation of or resembles an official traffic sign or -signal, or which bears the words “Stop,” “Go Slow,” “Caution,” “Danger,” “Warning,” or similar words, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic sign or signal.” The plaintiff’s position is that the word “device” includes any obstruction that interferes with the “effectiveness of any official traffic sign or signal.” It is clear from the context in which the word “device” is used in the statute it means any contrivance which would tend to mislead the traveler to believe the contrivance had official status in directing the movement of traffic, whether it resembles an official sign or not.

The trial court correctly entered a judgment of involuntary non-suit for the defendant Pacific Power & Light Company. The plaintiff also contends that the trial court erred in instructing the jury with reference to the liability of the defendant Carter as follows: “I instruct you that a person does not comply with the duty to keep a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same or similar circumstances.

I, therefore, instruct you that, if at the time of the accident, the Stop Sign would have been timely seen by a reasonably prudent person under the same or similar circumstances, then the defendant Carter would not be liable even though you found that the defendant Carter was negligent in some regard.” The state highway department issued a manual on Uniform Traffic Control Devices which provides that “the minimum size of the STOP sign” in rural districts “shall be 30 inches by 30 inches.” The stop sign erected by the state employee Carter at this intersection after the issuance of the manual was an older sign that had previously been acceptable, but was only 24 inches by 24 inches.

It is the plaintiff’s contention that Carter’s failure to follow the directive in the manual constituted misfeasance, and this neglect or negligence was a contributing cause of the accident. The plaintiff’s exception to the instruction is that “because the mere fact that a reasonable and prudent person would have seen the Stop Sign is not a defense to Carter.” The plaintiff seems to be of the opinion that misfeasance alone justifies recovery.

It is well-established in this jurisdiction, as elsewhere, that the misfeasance of a defendant must have been a cause or a contributing cause of the accident that results in injury before a recovery may be had. It is equally well-settled that a person is not liable for the negligence of a tort feasor, unless the conduct of the tort feasor was authorized, participated in, or the person had the power to control the actions of the tort feasor. Knapp v. Standard Oil Co., 156 Or 564, 68 P2d 1052.

There is no evidence in this case that defendant Carter had any connection with the defendant Manley Suess, the operator of the car in which plaintiff was riding. It, therefore, follows that the conduct of Carter is not to be measured by the conduct of Suess, but by the conduct of the reasonable prudent man, in determining the causal relation between the charged misfeasance of Carter and the resulting injury to the plaintiff. The trial court correctly stated the law in this instruction.

The plaintiff also assigns error in the trial court’s instruction to the jury setting forth the rules of law by which the jury should determine the status of the plaintiff, “guest” or “paying passenger,” while riding in the Suess automobile. We find no error in the instruction as given, but even should the instruction be considered erroneous, no reversible error would attach, since the plaintiff’s own uncontradicted testimony discloses that the plaintiff was a guest as a matter of law. The plaintiff testified that she and her husband were acquainted with Mr. and Mrs.

Suess; that they learned about three weeks in advance that Mr. and Mrs. Suess were coming to visit in Eugene. Mr. and Mrs. Suess were invited to be house guests of the plaintiff and her husband and they accepted. The Ashlands, for the entertainment of their house guests, invited friends to a barbecue. In the evening the plaintiff’s husband asked the Suesses if they would like to go through the sawmill where he worked and they “seemed very happy to get the chance to do it.” The plaintiff further testified that Mr. and Mrs.

Suess were not acquainted in and around Eugene and, therefore, did not know the way to the sawmill, and that, while she did not care to go through the sawmill, her “husband suggested that [she] could go riding along with them 'and show them the way,” and she agreed to do this. It was on the return trip from the visit to the sawmill that the accident occurred. The plaintiff’s contention that she was a “paying passenger” must rest on the theory that she was bestowing a benefit upon Suess by acting as his guide to the sawmill. But as stated by this court in Tarbet v.

Green, 236 Or 361, 363, 388 P2d 468, “* # * Plaintiff states the rule to be that ‘One who accepts a ride for the sole purpose of performing a service for the driver of a vehicle is not a guest but a passenger.’ The rule is stated too broadly.

There must not only be a benefit but the benefit must be more than ‘vague or trivial’ and it must be one that has some significance beyond the usual social amenities which are expected in the relationship between the plaintiff and the defendant.” certainly the only conclusion that could be reached by reasonable minds from the facts in this case is that in guiding the Suesses to the sawmill plaintiff was merely performing her social duties as a good hostess by assisting her friends to enjoy their visit in Eugene.

We have examined other assignments of error claimed by plaintiff, but find nothing that would require a reversal of the judgments. The judgments of the trial court are affirmed. ON REHEARING Arthur C. Johnson and Johnson, Johnson & Harrang, Eugene, for the petition.