Cline v. Bush

• Decision Date: 10 December 1935
• Citation: Cline v. Bush, 152 Or. 63, 52 P.2d 652 (Or. 1935)
• Parties: CLINE v. BUSH et al.
• Court: Oregon Supreme Court

52 P.2d 652

152 Or. 63

CLINE v. BUSH et al.

Supreme Court of Oregon

December 10, 1935

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by James L. Cline against A. O. Bush and Angela Bush.From an adverse judgment, the plaintiff appeals.

Affirmed.

David B. Evans, of Eugene (Immel & Evans, of Eugene on the brief), for appellant.

William W. Harcombe, of Eugene, for respondents.

CAMPBELL Chief Justice.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff by reason of the negligent acts of defendant.The cause was tried to a jury, which returned a verdict for defendant.Plaintiff appeals.

On October 26, 1934, plaintiff, a man upwards of seventy years of age, was walking in the pedestrian lane northerly across Thirteenth avenue at its intersection with Charleton street in the city of Eugene, Or.The defendant at the same time was driving a model T Ford car easterly on said street.Plaintiff alleges in effect that defendant was negligent in the following: (1) In driving at a dangerous rate of speed; (2) that she failed to give plaintiff the right of way; (3) that she failed to slacken her speed or do anything to avoid striking plaintiff with her car; (4) that she operated her car with an utter disregard for the rights of plaintiff; (5) that she did not have her car under control.

Defendant denied all the alleged acts of negligence and as an affirmative defense alleged that plaintiff's negligence was the proximate cause of whatever injury he sustained by reason of the collision with her car at the time and place alleged in the complaint.She alleges in effect that plaintiff was negligent as follows: (1) That he failed to look out for her car or any car, and by placing himself in the path of her car so quickly that she had no time to stop (2) that he started across said intersection as defendant was approaching, and when he passed beyond the path of travel of defendant, leaving plenty of room for her to safely drive between him and the curb of the street which he had just left, he suddenly turned and reversed his course and placed himself immediately in the pathway of defendant's car and so close that she had no time to stop or change her course before colliding with him, although she was proceeding at a very low and safe rate of speed; (3) that he was negligent in turning and reversing his direction without warning to her.

The new matter was denied in the reply.

Plaintiff took exceptions to certain instructions given by the court to the jury.

After judgment was entered, plaintiff filed a motion for a new trial on the grounds of: (1) Insufficiency of the evidence to justify the verdict; and (2) errors of law occurring at the trial and excepted to by plaintiff.This motion was afterwards amended by leave of the court and the further ground of newly discovered evidence was added.

1.In instructing the jury, the court advised them that: "The defendant *** has introduced some evidence which she claims tends to show that she did in fact yield the right of way to plaintiff.Now then she has introduced testimony which she claims tends to show that upon her approach to the crossing plaintiff started to cross Thirteenth avenue and had proceeded some distance from the south curb line of Thirteenth avenue and she claims that there was ample room for her to pass between the south curb of Thirteenth avenue and the position of plaintiff on the crossing, and she claims that if the plaintiff had proceeded in the course which he had undertaken, that there would have been no collision.Of course this is a question of fact for the jury to decide, but that is her claim."

When the defendant went on the stand, in speaking of the plaintiff crossing the street, she testified:

"He walked a little ways.I looked at the man all the time, and I never seen him look up for nothing, neither up the street nor down the street, and I knew he was an old man and I went slow, and almost come to a stop because I had my car in low, and the man walked fast and all of a sudden he turned and faced the car.Naturally that confused me, I put on the brakes and just straight in front of me he hit the radiator face to me, and I stopped as quick as I could.I don't suppose I went over two or three feet.I was going in low and I put my foot on the brake and when I stopped the car he fell down and rolled over in the street, and I jumped right out of the car and went over to see him and another man came along, that man that was testifying a while ago was behind the car and he stopped behind me. ***

"Q.Now, when you saw Mr. Cline as he stepped off the curb did you watch him from that time on until the time of the collision?A.I most certainly did, every minute.

"Q.Well, you say he turned?A.Well, I don't know-he kept going and I naturally think he keeps going and all of a sudden he turned, like that.(Indicating)And turned about quickly and he just faced me.

"Q.How far had he got across the street before he turned?A.Well, he had got far enough past so he was past the car.He was by where I was with the car.

"Q.He was completely beyond the car?A.Yes, he was completely beyond the car, and I often wondered if he saw the car or hear it but he didn't look up the street or down the street.He was mistaken in that because I watched him."

There was considerable more testimony to the same effect.

This testimony justifies this instruction that the learned court gave.

A party litigant is entitled to have the court instruct on his theory of the case if there is any competent evidence to support it.Manning v. Helbock,135 Or. 262, 295 P. 207.

2.The court further instructed the jury: "*** if you find from the evidence of the case that there was ample room between the south curb of Thirteenth avenue and position in the crossing in which the plaintiff was at the time of the accident for the defendant to have driven her car through and if she attempted to do so, and if you further find from the evidence in the case that plaintiff suddenly reversed his course and started back, then under those circumstances the defendantAngela Bush was required to exercise ordinary care and caution to prevent colliding with the-or striking the plaintiff, and if such fact took place, and if that is what happened, and it is for you to say, if the defendant did exercise reasonable care to...