Blanton v. Union Pac. R. Co.

• Decision Date: 10 September 1980
• Docket Number: No. A7606-08132,A7606-08132
• Citation: 289 Or. 617,616 P.2d 477
• Parties: George E. BLANTON, Petitioner, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent. ; CA 11120; SC 26503.
• Court: Oregon Supreme Court

Page 477

616 P.2d 477

289 Or. 617

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

No. A7606-08132; CA 11120; SC 26503.

Supreme Court of Oregon.

Argued and Submitted March 5, 1980.

Decided Sept. 10, 1980.

John R. Faust, Jr., Portland, argued the cause for petitioner. On the brief was Jeffrey M. Batchelor, Zig I. Zakovics, and Reiter, Bricker, Zakovics & Querin, PC, Portland.

Walter J. Cosgrave, Portland, argued the cause for respondent. On the briefs were Walter J. Cosgrave and Randall B. Kester, Portland.

Before DENECKE, C. J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ.

PETERSON, Justice.

We granted review in this personal injury case to consider the scope of a trial judge's discretion. The defendant railroad appealed from a verdict and a judgment for plaintiff, a brakeman, in an action for personal injuries under the Employers' Liability Act, 45 U.S.C. § 51 et seq. (1976), and related statutes. The railroad admitted liability. On trial, the jury found for the plaintiff, and judgment was entered in his favor. Defendant appealed to the Court of Appeals, claiming that the trial court erred in these respects, among others:

A. In failing to grant defendant's motion for mistrial because of prejudicial statements made by plaintiff's attorney in his opening statement.

B. In granting the plaintiff's motion to amend his complaint to include a claim of a herniated disc, and in permitting plaintiff's doctor to testify respecting such injury.

C. In refusal of the presiding judge of the Multnomah County Circuit Court, in the absence of the trial judge, to consider and rule upon defendant's motion for reconsideration of its motion for a new trial and for other relief.

The Court of Appeals held that the trial court erred in failing to grant the defendant's motion for a mistrial and reversed, ¹ and plaintiff appealed to this court.

A. THE MISTRIAL MOTION

Defendant, at the beginning of trial, admitted liability for the accident, but denied that the plaintiff sustained injury as alleged. The trial court, before either lawyer began to examine the jury panel, told the jury panel:

"The railroad has admitted legal liability for the happening of the accident, but has denied injury or the nature and extent of the injury. So this is a single issue case. We're concerned, therefore, solely with the question of injury and damages."

The defendant claims that statements made by the plaintiff's attorney to the jury, during opening statement, were so prejudicial that the defendant's motion for a mistrial should have been granted. These are the statements which, according to the defendant, prejudiced its right to a fair trial:

"(1) The 'admission of the railroad that they were at fault.'

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

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

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

"(5) 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. * * * '

"(6) 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, * * *.'

"(7) That the plaintiff had 20 or 30 hand brakes to tie down.

"(8) That ' * * * the logical think 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.

"(9) That 'normally the locomotive will carry some spare parts', * * * but that 'the firemen looked in three units and finally found a knuckle that was interchangeable in the last unit.'

"(10) That the replacing of the knuckle in mountainous territory is a fairly common occurrence, but that in the dark place where the knuckle was stored, ' * * * the back of the room was covered with oil and he had no choice because they couldn't go without it * * * '

"(11) 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.'

"(12) That ' * * * obviously the railroad acknowledges they were at fault having this defective locomotive and coupler, * * *.' "

At the conclusion of the plaintiff's opening statement, the defendant's lawyer moved for a mistrial:

"MR. COSGRAVE: Please the Court, at this time the defendant moves the Court for an order of mistrial upon the grounds that counsel for the plaintiff deliberately, in violation of the warnings that the Court made before the jury was selected, to the effect that this was a case in which liability was admitted and that the defendant should not be penalized for that. Nonetheless, counsel has argued to the jury completely irrelevant matters; one to the effect that the coupler was defective on the car, and then again, that the engine was defective on the train, and further, his opening statement that the-that the charge that the railroad knew they were defective; I submit, Your Honor, that will prevent the defendant from having a fair trial, and it had no relevance whatsoever to this case and counsel knew it. If we were dealing with a man who had never tried a case before, we could, perhaps, excuse it, but I submit, Your Honor, that that prevents a fair trial in this case."

The trial judge denied the motion. In its opinion, the Court of Appeals listed the twelve statements set forth above and concluded:

"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. * * * " 41 Or.App. at 640, 598 P.2d at 1245.

The Court of Appeals either considered the matter of the trial discretion and opted not to discuss it, or failed to consider the applicability of trial court discretion. In either event, we believe the trial judge was clearly within the permissible limits of judicial discretion.

In Oregon, as in most states, questions regularly arise in the course of trial which call for procedural rulings by the trial court. Often such questions arise, as here, when inadmissible evidence is brought before a jury, and a party requests a mistrial, claiming that the evidence is so prejudicial that it prevents the party from having a fair trial.

In our previous cases, we have steadfastly adhered to the proposition that the trial judge is in the best position to determine whether inadmissible evidence or improper conduct has such a prejudicial effect upon the jury that it impairs one's rights to a fair trial. ²

The opening statements of the plaintiff's attorney were unquestionably prejudicial, but only in the sense that much unfavorable evidence is prejudicial to the party against whom it is offered. In that sense the defendant's own admission of liability was no less prejudicial.

We are unconvinced that the trial judge abused his discretion in denying the mistrial motion. The trial judge could have reasonably concluded that the comments were not inflammatory, that they had no effect upon the trial or upon the verdict, and that the likelihood of creating sympathy was not great. He was in the best position to determine the effect of the improper statements. The trial judge had the power to make a choice from two or more valid solutions, if supported by the facts. Yundt v. D & D Bowl, Inc., 259 Or. 247, 256, 486 P.2d 553 (1971). His decision is amply supported by facts, and we cannot say that there was any abuse of discretion. ³

Moreover, the motion for mistrial was not timely. Normally, if improper evidence is offered, objection must be made at the time of the offer or it is deemed waived. An objection generally should be made as soon as its applicability is, or should have been, known to the opponent. Defendant's counsel made no objection to the comments of plaintiff's lawyer until after the opening statement had been completed. We have no doubt that had objection been made to the first allegedly improper statement, the objection would have been sustained and plaintiff's counsel would have been instructed to forbear referring to evidence of defendant's fault. Instead, defendant's counsel opted to wait until the completion of plaintiff's opening statement, and then move for a mistrial. In circumstances such as this, timely objection is required. Failure to promptly object, under the facts of this case, waives the objection. ⁴

B. THE AMENDMENT DURING TRIAL

In his complaint, the plaintiff alleged that he "sustained fractures of his lumbar spine requiring surgical fusing * * *." At trial, over defendant's objection, the plaintiff offered evidence of a herniated intervertebral disc. ⁵ The defendant assigns this error:

"The trial court erred in permitting plaintiff to change the claim of injury which made his surgery necessary, from one of fractures of the lumbar spine to one of a herniated intervertebral disc; and the court erred in permitting a doctor to testify with respect to a herniated disc, when there was no claim for such injury; and the court erred in permitting the doctor to make his own decision concerning what was within the pleadings."

The issue arose during the testimony of an orthopedic surgeon, Dr. Cherry:

"Q Doctor, you mentioned that he had a laminectomy, what is the purpose of the laminectomy?

"A A laminectomy, the word...