Barclay v. Oregon-Washington R. & Nav. Co.

• Decision Date: 13 April 1915
• Parties: BARCLAY v. OREGON-WASHINGTON R. & NAVIGATION CO.
• Court: Oregon Supreme Court

147 P. 541

75 Or. 559

BARCLAY v. OREGON-WASHINGTON R. & NAVIGATION CO.

Supreme Court of Oregon

April 13, 1915

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by A. C. Barclay against the Oregon-Washington Railroad &amp Navigation Company. From an order granting a new trial after a verdict for plaintiff, plaintiff appeals. Affirmed.

This is an action for damages for personal injuries sustained by plaintiff by reason of a collision of two trains of defendant's cars occurring in Malheur county. Upon the day set for the trial plaintiff filed an amended complaint for the avowed purpose of bringing the action within the terms of the federal act relating to the liability of railroads to their employés. The amended complaint also contained an additional amendment in the following words "His right leg is wasting away." The jury returned a verdict for plaintiff, and judgment was duly entered thereon. Thereafter defendant moved for a new trial, and from an order allowing the same plaintiff appeals.

C. A Hardy, of Eugene, and R. E. Farrell, of Portland (Thompson &amp Hardy, of Eugene, and Davis & Farrell and Wilber Henderson, all of Portland, on the brief), for appellant. A. C. Spencer, of Portland (W. W. Cotton and W. A. Robbins, both of Portland, on the brief), for respondent.

BENSON, J.

There are but two assignments of error. The first is that the court erred in striking from the records plaintiff's counter affidavits bearing upon the motion for a new trial. The only comment which we need make upon this is to say that it is admitted that such counter affidavits were filed after the statutory time in which to file such papers had elapsed, and that upon the hearing of the motion counsel for plaintiff expressly conceded that his counter affidavits should not be considered.

The second assignment is that the court erred in granting the motion for a new trial. It has many times been held by this court that the granting or denying of a motion for a new trial is addressed to the sound discretion of the trial court and will be reversed only for manifest error or abuse of discretion. Stern v. Volz, 52 Or. 598, 98 P. 148 and cases there cited.

The affidavit upon which the motion in this case was based was made by the defendant's attorney, and plaintiff contends that it is necessary that it should be made by the defendant itself. It is true that as a general rule an...