O'Brien v. Dunigan
| Decision Date | 18 October 1949 |
| Citation | 210 P.2d 567,187 Or. 227 |
| Parties | O'BRIEN <I>v.</I> DUNIGAN |
| Court | Oregon Supreme Court |
1. Offers of proof after questions are excluded must be made before the trial judge in presence of the opponent and are not sufficient when first made in brief filed in the appellate court. O.C.L.A. §§ 1-1011, 5-704.
Appeal and error — Absence of offer of proof after excluded questions — Challenged ruling
2. In absence of an offer of proof after excluded questions, an appellate court cannot say that the challenged ruling affected adversely the substantial rights of appellant and generally cannot determine whether the ruling was in fact erroneous. O.C.L.A. §§ 1-1011, 5-704.
Appeal and error — Offer of proof first made in appellant's brief
3. Where question to which objection was sustained asked for comment which apparently was nothing but hearsay evidence, in absence of an offer of proof made in the presence of the opponents' counsel, assignment of error in which first offer of proof was made in appellant's brief failed to disclose error. O.C.L.A. §§ 1-1011, 5-704.
4. Where plaintiff testified that he drove his automobile completely off the main traveled portion of the highway in order to remove frost from the windshield, he estopped himself from claiming that the automobile was "disabled" within the statute prohibiting parking of a vehicle upon the paved or main traveled portion of any highway under certain circumstances except when the vehicle is "disabled". O.C.L.A. § 115-353.
See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Disabled".
Appeal and error — Instruction — "Park" in lieu of "disabled" — Not prejudicial
5. In action for damages sustained when plaintiff's automobile was struck from the rear by defendants' automobile after plaintiff had allegedly driven his car off the main traveled portion of the highway to remove frost from the windshield, instruction respecting negligence of plaintiff, in using the word "park" in lieu of some other term such as "disabled", was not prejudicial. O.C.L.A. § 115-353(a, c).
Appeal and error — Involuntary nonsuit — First cause of action — Not prejudicial — Verdict on that cause of action would have been the same as the one returned upon second cause in favor of defendant
6. Alleged error in excluding evidence and granting an involuntary nonsuit on plaintiff's first cause of action was not prejudicial where verdict of the jury upon that cause of action would have been the same as the one returned upon the second cause of action in favor of defendant.
Appeal and error — Vacate — Involuntary nonsuit
7. Assignment that trial court after both parties had rested should have vacated on order of involuntary nonsuit in favor of one defendant based on fact that plaintiff had produced no evidence showing that such defendant was negligent did not disclose error notwithstanding such defendant became a witness for the other defendants and gave some testimony allegedly showing that she was negligent where jury found that plaintiff's charges of such negligence were without foundation.
Trial — Litigant not permitted to speculate with a part of his evidence
8. A litigant is never permitted to speculate with a part of his evidence, and upon meeting with an adverse ruling, ask for another opportunity to present it.
See: 4 A.L.R. 2d 781
20 Am. Jur. 238
4 C.J.S., Appeal and Error § 291
Appeal from Circuit Court, Marion County.
Roy R. Hewitt, of Salem, argued the cause and filed a brief for appellant.
Asa Lewelling, of Salem, argued the cause and filed a brief for respondents.
Before LUSK, Chief Justice, and BRAND, ROSSMAN, BAILEY and HAY, Justices.
Action by E.W. O'Brien against Loren Dunigan and others for damages resulting from an automobile collision.
Judgment was entered for defendants in the Circuit Court of Marion County, E.M. PAGE, J., and the plaintiff appealed.
The Supreme Court, ROSSMAN, J., affirmed, holding that plaintiff could not complain of exclusion of evidence in absence of an offer of proof, that an instruction was not prejudicial because using the word "park", and that the trial court properly refused to vacate an order of involuntary nonsuit entered in favor of one defendant upon her motion after the plaintiff had rested.
This is an appeal by the plaintiff from a judgment in favor of the three defendants. The action which terminated in the attacked judgment was predicated upon averments that an automobile operated by the defendants negligently collided with one owned by the plaintiff, thereby injuring the plaintiff in person and property. The complaint assumed the form of two counts, but the averments of negligence were the same in each. The first count sought damages for injury to property (automobile); the second, for injury to person.
The defendants are Loren Dunigan, operator of the car which the complaint terms the defendants', Arlie Skiller, owner of the car, and Mrs. Arlie Skiller, an occupant of the car at the time of the mishap.
The judgment in favor of the defendant, Mrs. Skiller, as to both causes of action, is based upon an order of involuntary nonsuit which was entered at the close of plaintiff's case. The judgment in favor of the defendants, Arlie Skiller and Loran Dunigan, as to the first cause of action, is based upon orders of involuntary nonsuit which were entered at the close of of plaintiff's case. The judgment in favor of those two defendants, as to the second cause of action, is based upon the verdict of a jury.
The collision occurred December 14, 1945, at about 7:15 a.m., two miles northeast of Salem upon the Salem-Silverton highway. At the time of the impact, the car, of which the plaintiff claims ownership, was standing still and was facing southwest, that is, toward Salem. It was struck in the rear by the car driven by defendant Dunigan, who was also proceeding toward Salem.
The parties agree that at the hour of the impact the air was foggy and so cold that frost formed upon windshields. The sun rose that morning at 7:21. Due to the fact that his windshield had become frosty, the plaintiff stopped his car at the place we mentioned and was engaged in removing frost when the defendants' car approaching from the rear collied with it. The pavement is 21 feet wide and upon its two sides are gravel shoulders five or six feet wide.
The plaintiff presents four assignments of error. The first challenges three rulings which may be summarized as follows: (a) the first ruling sustained the defendants' objection to the receipt of evidence of a title certificate which described the automobile of which the plaintiff claims ownership; (b) the second sustained the defendants' objection to the receipt in evidence of a paper which the plaintiff terms "a vehicle registration slip"; and (c) the third sustained the defendants' motion for an involuntary nonsuit upon the first cause of action.
The second assignment of error is based upon rulings which sustained objections made by the defendants to the following questions which plaintiff's counsel propounded to witness L.H. Meyer:
We explain that "the Ford convertible coupe" mentioned in the first question and "this car [that] passed you," mentioned in the second, were one and the same car. The plaintiff claims that that car was the one which Dunigan was driving, and that Mr. Meyer saw it about five miles before it struck the one from which the plaintiff was removing frost.
The third assignment of error is based upon a contention that error was committed when the trial judge, after both parties had rested, refused to vacate the previous order of involuntary nonsuit favorable to the defendant, Mrs. Arlie Skiller, which he had entered at the close of the plaintiff's case.
The fourth assignment of error is based upon instructions given by the trial judge to the jury which, as epitomized in the plaintiff's brief, read as follows:
Plaintiff's exception to the instruction was expressed as follows:
"Plaintiff also excepts to that part of the Court's instructions and to each place where the Court referred to the parking of an automobile at any time during the period of this controversy for the reason that the evidence and all of the evidence shows that the placing or parking of the automobile was the result of an emergency stop, and that at no time was it parked."
Before considering assignments of error I and III, we shall consider II and IV.
Mr. L.H. Meyer, mentioned in assignment of error II, was a passenger in an automobile which his daughter was driving toward Salem. The Meyer car was proceeding in the same direction as the defendants'. According to Mr. Meyer, "approximately five miles back" from the place where the plaintiff's car was struck by the defendants', the Meyer car was overtaken by a Ford convertible coupe. He swore that he saw no other Ford convertible coupe upon the road. The car owned by defendant Arlie Skiller was a Ford convertible coupe and, based...
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...Insurance Co. of North America, 124 N.J.L. 438, 12 A.2d 693, 695; Plott v. Howell, 191 N.C. 832, 133 S.E. 167; O'Brien v. Dunigan, 187 Or. 227, 210 P.2d 567, 572-573. Quite in point is Simon v. Nelson, 118 Conn. 154, 170 A. 796, 797, where the jury was erroneously instructed that plaintiff-......
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