Cederoth v. Cowles

• Jurisdiction: Oregon
• Parties: Eunice M. CEDEROTH, Administratrix of the Estate of Richard A. Hoefer, Deceased, Respondent, v. Don H. COWLES and Earl Cowles, Appellants.
• Citation: Cederoth v. Cowles, 356 P.2d 542, 224 Or. 403 (Or. 1960)
• Court: Oregon Supreme Court
• Decision Date: 26 October 1960

Page 542

356 P.2d 542

224 Or. 403

Eunice M. CEDEROTH, Administratrix of the Estate of Richard A. Hoefer, Deceased, Respondent, v.Don H. COWLES and Earl Cowles, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 6, 1960.

Decided Oct. 26, 1960.

Arthur S. Vosburg, Portland, argued the cause for appellants.On the briefs were Vosburg, Joss, Hedlund & Bosch and Norman L. Lindstedt, Portland.

Edwin J. Welsh, Portland, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and KING, JJ.

KING, Justice pro tem.

This is an action for the wrongful death of plaintiff's decedent as a result of being struck by defendants' car in an unmarked crosswalk in Portland, Oregon.

On December 19, 1957, at approximately 7:30 p. m., Richard A. Hoefer, a man 86 years of age, alighted from a bus on the west side of S. E. 39th avenue at the northerly intersection with S. E. Glenwood street.The bus went on and Mr. Hoefer started east across 39th avenue in the unmarked crosswalk.As he crossed the center line of 39th avenue, which is 41 feet from curb to curb, defendantDon H. Cowles was approaching the intersection from the south and driving north on the east side of 39th avenue, a two-way street.

Don Cowles first noticed Mr. Hoefer when he was about 70 feet away.Cowles was traveling between 30 and 35 miles per hour.He applied his brakes but struck Mr. Hoefer, and his body was carried about 70 feet from the point of impact.

It was a dark, cloudy, damp evening.There was a street light on the southwest corner of Glenwood street that at least partially lighted the intersection.

Another car driven by John M. Daniels was approaching the intersection from the north on the west side of 39th avenue.This driver saw Mr. Hoefer start across the street and stopped his car some 100 feet north of the crossing and was still there, with his car lights on, at the time of the accident.

The accident occurred within the extensions of the unmarked crosswalk.It is admitted that plaintiff's decedent, Mr. Hoefer, died as the result of this accident.

The case was submitted to the jury against Don H. Cowles as driver of the car and against his fatherEarl Cowles as owner of the car under the family purpose doctrine.The jury returned a verdict in favor of both the defendants.The plaintiff filed a motion for new trial, which was granted by the trial court, and both defendants appealed.

The question for determination is: Should a new trial have been granted?

More than 30 days had elapsed between the judgment in the trial court and the order granting the new trial; consequently, the trial court could not grant the new trial on its own motion, but could consider any or all issues raised in plaintiff's motion for new trial.

In the recent case of Lane v. Stewart, Or., 351 P.2d 73, 75, this court, by Justice Harris, said:

'The question for decision is whether the court properly granted defendant's motion for a new trial upon any of the grounds set forth in the motion for new trial.If any of the grounds set forth in the motion is tenable, this court must sustain the order granting the new trial.If none of the grounds can be sustained, the judgment based on the verdict of the jury must be reinstated.Zeek v. Bicknell, 159 Or. 167, 169, 78 P.2d 620.'

Under this rule we will consider all parts of plaintiff's motion for new trial as they are set forth, rather than examine the case in the order of defendants' assignments of error.

Section 1 of the motion alleges irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial and sets forth that the court failed to give plaintiff's requested instructions Nos. 2, 3, 5 and 6 and claims repetitive emphasis in certain instructions on contributory negligence.

Section 3 alleges errors in law and exceptions thereto in the failure to give the same above-numbered instructions, as well as giving other instructions claimed erroneous.

These two sections of the motion will be considered at the same time.

Plaintiff's requested instruction No. 2 reads as follows:

'I instruct you that a person driving an automobile is driving a machine capable of doing great damage if not handled in a careful and prudent manner.Therefore, it takes more care on the part of the driver of an automobile to amount to reasonable care in a situation than is required of a pedestrian walking across the highway.While the same degree of care is imposed on both the automobile driver and the pedestrian, the amount of care may be different, for it may be said that the autoist is bound to exercise a greater amount of care than the pedestrian.'

Exception was taken by the plaintiff to 'all our requested instructions that were not given or any of them given as modified.'This exception was allowed.

The above instruction is taken almost verbatim from Larkins v. Utah Copper Co., 169 Or. 499, 512, 127 P.2d 354, 359.There the court said:

'The above instruction is somewhat involved but we think what the court tried to impart to the jury was that the degree of care to be exercised by either a motorist or a pedestrian must be commensurate with the danger involved.* * * There is no evidence tending to show contributory negligence on the part of the plaintiff.The instruction[224 Or. 408] --even if erroneous--did not prejudice the rights of the defendants.'

It will be observed from the above language that the court did not approve the language of the instruction for general application, but merely held it was not reversible error in the particular set of facts in that particular case.

In Bracht v. Palace Laundry Co., 156 Or. 151, 159, 65 P.2d 1039, 1043, speaking of a similar instruction, Justice Bailey says:

'* * * Although according to our previous holding it would not have been erroneous to give this requested instruction, nevertheless we do not believe that the failure to give it would constitute reversible error.'

In Sherrard v. Werline, 162 Or. 135, 162, 91 P.2d 344, 355, after an exhaustive study of cases from Oregon and from other jurisdictions, Mr. Justice Rossman, speaking of an instruction identical to the first part of plaintiff's requested instruction No. 2 in this case, says:

'Let us now revert to the challenged instruction.Its first sentence is nothing more than the statement of a fact universally recognized as true.The second sentence was apparently employed for the purpose of showing that 'reasonable care' is not composed of a fixed number of units as, for instance, a dozen, but that the amount of care which constitutes a 'reasonable' amount varies and is controlled by the circumstances like the flow and ebb of the tides.We believe that when an explanation has been made of the demands of due care and when the jury has been informed that both parties must exercise reasonable care, the instruction criticized by the defendant may be employed for the purpose of illustrating still further the fact that the diligence to be exercised is dependent upon the attendent circumstances.We are satisfied that a sufficient statement of the demands of due care may be given without resort to this instruction and, hence, do not say that it must be employed in all instances, but, as already indicated, it may be employed for the sake of clarity.'(Emphasis added.)

In Cline v. Bush, 152 Or. 63, 52 P.2d 652, 655, this court, in sustaining the circuit court's refusal to give the instruction, said:

'The amount of care required by both the pedestrian and the driver is such care as an ordinarily careful prudent person would exercise under similar conditions and circumstances, and commensurate with the danger to be apprehended.The court fully instructed the jury in the instant case as to the care required by the plaintiff as well as by the defendant.'

We hold that the court in this case fully and properly...