Boner v. Matthews
| Decision Date | 30 December 1960 |
| Citation | 225 Or. 500,358 P.2d 285 |
| Parties | Mary A. BONER, Appellant, v. Vera A. C. MATTHEWS, as guardian ad litem of Thomas Patch, a minor, Respondent. |
| Court | Oregon Supreme Court |
Wm. E. Walsh, Coos Bay, argued the cause and filed briefs for appellant.
Otto R. Skopil, Jr., Salem, argued the cause for respondent. With him on the brief was Bruce W. Williams, Salem.
Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and HOWELL, JJ.
This was an action for personal injuries sustained by plaintiff in an automobile accident. The jury found for defendant; plaintiff appeals. The one assignment of error concerns an instruction on contributory negligence. The issue is factual and simple.
The accident in question occurred near Coos Bay. Plaintiff was riding in the front seat of a car driven by her husband. Traffic conditions caused the husband to stop the car at an intersection. Another car stopped behind the car plaintiff was in. Defendant approached from the rear of the car then behind the car plaintiff was in and failed to stop. His car struck the car behind the one plaintiff was in and that car then struck the back of the plaintiff's husband's car. She sustained injury.
There was some evidence that plaintiff's husband had been drinking. Because of that the court gave an extended instruction, in substance, permitting the jury to find contributory negligence on the part of plaintiff if they found she was riding with her husband knowing him to be under the influence of intoxicating liquor without remonstrance on her part. We are not concerned with the correctness of the instruction given. Assuming the evidence of intoxication was sufficient to take that issue to the jury, which we doubt, there was no evidence that the drinking was the proximate cause of this accident in the slightest degree. It was simply a case where the car in which plaintiff was riding had stopped for a legitimate purpose. There was no evidence that the car was stopped suddenly or erratically. It was only necessary for the jury to decide if there was any negligence on the part of defendant because of his failure to stop.
The instruction was timely excepted to. It is claimed that plaintiff waived the question when he failed to move to strike the issue from the answer at the close of the case. We do not think so. It would have been better practice for plaintiff to have moved to strike the allegation at...
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Ostrander v. Alliance Corp.
...there must be some other fact in evidence providing a nexus between the consumption and the claim of negligence. Boner v. Matthews, 225 Or. 500, 358 P.2d 285 (1961); see also State v. Kolendar, 100 Or.App. 319, 786 P.2d 199, rev. den. 309 Or. 698, 790 P.2d 1141 (1990) (odor of alcohol toget......
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Bash v. Fir Grove Cemeteries, Co.
...that the trial court was given "ample opportunity to correct the error before the jury considered the case." Boner v. Matthews, 225 Or. 500, 502, 358 P.2d 285, 286 (1961). We conclude that the trial court, in this instance, was adequately informed that plaintiff's motion related to instruct......
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Crow v. Junior Bootshops of Portland, Inc.
...trial court's error. Defendant properly preserved its claim of error. The situation is somewhat analogous to that in Boner v. Mathews, 225 Or. 500, 358 P.2d 285 (1961). There, plaintiff excepted to the trial court's instruction that if plaintiff was riding with her husband knowing him to be......