Blanton v. Union Pac. R. Co., A7606-08132

• Decision Date: 27 August 1979
• Docket Number: No. A7606-08132,A7606-08132
• Citation: 41 Or.App. 637,598 P.2d 1244
• Parties: George E. BLANTON, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellant. ; CA 11120.
• Court: Oregon Court of Appeals

Page 1244

598 P.2d 1244

41 Or.App. 637

George E. BLANTON, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellant.

No. A7606-08132; CA 11120.

Court of Appeals of Oregon.

Argued and Submitted May 23, 1979.

Decided Aug. 27, 1979.

Walter J. Cosgrave, Portland, argued the cause for appellant. With him on the briefs were Cosgrave & Kester, Portland.

Jeffrey M. Batchelor, Portland, argued the cause for respondent. With him on the brief were Zig I. Zakovics and Reiter, Bricker, Zakovics & Querin, Portland.

Before SCHWAB, C. J., and THORNTON and BUTTLER, JJ.

THORNTON, Judge.

Defendant railroad appeals from a verdict and judgment for plaintiff, a brakeman, in an action for personal injuries under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., and related statutes. The railroad admitted liability. The only issues tried were the extent of plaintiff's injuries and damages.

Defendant makes the following assignments of error: The trial court erred

1) by permitting plaintiff's attorney to "argue" charges of fault in opening statement, and denying defendant's motion for a mistrial on this account;

2) by permitting plaintiff to change the claim of injury;

3) by instructing the jury not to consider plaintiff's pension benefits; and

4) by refusing to reconsider and rule on defendant's motion for new trial (by presiding judge in absence of trial judge).

Plaintiff's injuries resulted from a fall after the railroad train on which he was working collided with some debris while traveling between La Grande and Pendleton.

ALLEGED IMPROPER STATEMENTS BY PLAINTIFF'S COUNSEL

Plaintiff's opening statement included the following:

That there were 90 cars and 8 locomotives and that "even though there are all these locomotives, there is only one engineer."

That there had been a landslide caused by "construction work being done by the railroad or someone else."

That "the engineer thought he could go over the trees without much damage," and "went across the trees with the train."

That "one of the couplers broke apparently there was a defective coupler in the train and it broke and the train came apart approximately in the middle."

That "the knuckle part the part that joins the two cars together, one of them had fractured which it shouldn't have done, but it fractured."

That "the logical thing that I thought or you might think as well, you'd think they'd push the front portion of the train back and replace the knuckle and pull the train away," but that it was done in a different manner because of a lack of enough power.

That the oil was there "apparently because of some defect in the locomotive and because of this defect in the locomotive which the railroad acknowledges, because they have admitted they are at fault * * *. The oil shouldn't have been there."

That "obviously the railroad acknowledges they were at fault having this defective locomotive and coupler."

Based on our examination of plaintiff's entire opening statement we conclude that plaintiff's statements relating to fault, taken as a whole, were irrelevant and improper, and were prejudicial to defendant's right to a fair trial in view of defendant's prior admission of liability. The trial court erred in denying defendant's motion for a mistrial. See Highway Commission v. Callahan, 242 Or. 551, 555, 410 P.2d 818 (1966).

Since we conclude that the foregoing was reversible error requiring a new trial, we deem it necessary for us to discuss only the one of defendant's other assignments of error which may arise on retrial.

PLAINTIFF'S PENSION BENEFITS

The court's instruction on this subject was as follows:

" * * * There has been evidence received that Mr. Blanton is the recipient of a disability pension under...