Clubb v. Hanson

CourtSupreme Court of Oregon
Writing for the CourtTONGUE
Citation75 Adv.Sh. 2084,272 Or. 236,536 P.2d 528
PartiesJames W. CLUBB, Respondent, v. Thomas N. HANSON, dba Hillyer Oil Company and Hillyer Oil Company, an Oregon Corporation, Appellants.
Decision Date12 June 1975

Page 528

536 P.2d 528
272 Or. 236
James W. CLUBB, Respondent,
v.
Thomas N. HANSON, dba Hillyer Oil Company and Hillyer Oil
Company, an Oregon Corporation, Appellants.
Supreme Court of Oregon, In Banc.
Argued and Submitted May 7, 1975.
Decided June 12, 1975.

[272 Or. 238]

Page 529

Patrick Ford, Ford & Cowling, Medford, argued the cause and filed the brief for appellants.

Thomas C. Howser, Cottle & Howser, Ashland, argued the cause and filed the brief for respondent.

TONGUE, Justice.

This is an action for damages for personal injuries[272 Or. 239] sustained by plaintiff when, according to his complaint, defendants' hydraulic jack either 'slipped' or was 'released' by defendants employee, causing plaintiff's truck to fall on him while he was replacing a spare tire under the rear of the truck. The case was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $18,500. Defendants appeal from the resulting judgment. We affirm.

Defendants' assignments of error are: (1) The trial court erred in denying defendants'

Page 530

motions for nonsuit and directed verdict; (2) The trial court erred in denying defendants' motion to require plaintiff to elect between inconsistent specifications of negligence; and (3) The trial court erred in denying defendants' motion for a new trial for error relating to the submission to the jury of special interrogatories and for irregularity in the proceedings relating to answers by the jury to those special interrogatories.

1. The evidence was sufficient to support the verdict.

Because of direct conflicts in the testimony we must bear in mind that in determining whether there was sufficient evidence to support the verdict all conflicts in the evidence must be resolved in favor of the plaintiff and he is also entitled to the benefit of all favorable inferences which may be reasonably drawn from such evidence. Cronn v. Fisher, 245 Or. 407, 416, 422 P.2d 276 (1966).

Plaintiff drove his camper pickup truck to defendants' service station near Ashland to buy gasoline and to have a tire changed. He testified that he asked the attendant, Mr. Thompkins, if they had a jack strong enough to lift the truck and was told that they did. 1 [272 Or. 240] According to plaintiff, the attendant then jacked up the rear of the truck with a hydraulic bumper jack (not a hydraulic lift) and tried to get the spare tire out, but did not understand how to do so. After asking plaintiff if he knew how, the attendant got 'out from under' the truck and 'handed me the screwdriver,' after which plaintiff got under the truck and took the spare wheel out while the attendant was taking a rear wheel off. 2

Plaintiff testified that the attendant then 'rolled it around to me' and 'took the spare and he put it on.' Plaintiff placed the rear wheel 'in the mantle' under the back of the truck, but had not 'tightened it up completely' when he 'felt the pickup coming down.' He was pinned under the truck until the attendant, after first attempting to lift the rear of the truck with the help of some other men, then lifted it without difficulty using the jack, which was still under the rear bumper of the truck and which did not 'have to be reset,' according to the testimony of Mr. Thompkins. 3

One of the men who attempted to help the attendant lift the truck testified that he had been working nearby and that just before the truck fell he saw the attendant, Mr. Thompkins, go to the jack, where he stood 'with his hand on the handle' of the jack 'when it fell.' 4

The Ashland Chief of Police and a police sergeant[272 Or. 241] also came to the scene of the accident. They both testified that when they arrived the jack was partly raised holding the truck. They interviewed Mr. Thompkins and he 'indicated the jack just slipped' or 'failed' and that 'it had slipped' or 'failed' on 'several previous occasions.' Plaintiff's wife also testified that after the accident Mr. Thompkins told her substantially the same thing. 5

Page 531

[3,4] We hold that this evidence was sufficient to support the verdict because the jury could reasonably infer from this testimony that either defendants' attendant, whose hand was seen by a witness to be on the 'handle' of the jack when it fell, caused it to be 'released' or to 'fall' or that the jack 'slipped' or 'failed,' as it had also done on previous occasions, and that in either event defendants were negligent and that such negligence was the proximate cause of the accident.

Defendants say that there was no direct evidence that defendants' attendant 'released' the jack or that it malfunctioned. It is well established, however, that negligence may be established not only by direct evidence, but also by circumstantial evidence. See Schweiger et ux v. Solbeck et ux, 191 Or. 454, 466, 230 P.2d 195 (1951), and Ehler et ux v. Portland Gas & Coke Co., 223 Or. 28, 38, 352 P.2d 1102, 353 P.2d 864 (1960). We hold that there was sufficient circumstantial evidence to support such a finding by the jury in this case. Cf. Eitel v. Times, Inc., 221 Or. 585, 596--601, 352 P.2d 485 (1960), and Cowgill, Adm'r v. Boock, Adm'r, 189 Or. 282, 291, 218 P.2d 445 (1950).

Defendants also say that this is not a proper case for application of the rule of res ipsa loquitur because of plaintiff's contributory negligence, among [272 Or. 242] other reasons. 6 No res ipsa instruction was given to the jury in this case, however, and the evidence, in our judgment, was sufficient to support a finding of negligence without resort to that rule.

2. The trial court did not err in denying defendants' motion to require plaintiff to elect between inconsistent specifications of negligence.

Defendants contend that alternative pleading is improper, at least as a general rule, citing Kornbrodt v. Equitable Trust Co., 137 Or. 386, 2 P.2d 236, 3 P.2d 127 (1931), and Oregon Farm Bureau v. Thompson, 235 Or. 162, 378 P.2d 563, 384 P.2d 182 (1963), and that this case does not present the 'rare circumstances' in which alternative pleading is permitted, as in Turney v. Southern Pac. Co., 44 Or. 280, 75 P. 144, 76 P. 1080 (1904).

The established rule on alternative pleading is stated in Jones v. Howe-Thompson, Inc., 143 Or. 337, 342--43, 22 P.2d 502, 504 (1933), as follows:

'Our rule of pleading * * * requires the pleader in the drafting of his pleading to make 'a plain and concise statement of the facts.' It says nothing about alternative language. Language which is alternative in form may not be sufficiently plain if the pleader plainly knows the truth, or should know it. But it occasionally must occur that after an accident has happened which has inflicted an injury upon one who now desires to sue, that he knows that the prospective defendant committed one or the other of two acts, and was negligent in either event, but is unable to determine with sufficient certainty which one so as to justify him in abandoning the one as a premise for his action and swearing to the other. Under such circumstances, if disjunctive language...

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7 practice notes
  • Glover v. BIC Corp., Nos. 91-35584
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 29, 1993
    ...P.2d 617, 619 (1977). "[N]egligence may be established not only by direct evidence, but also by circumstantial evidence." Clubb v. Hanson, 272 Or. 236, 241, 536 P.2d 528, 531 We conclude Glover produced substantial evidence to show breach of the standard of care owed by BIC. Glover produced......
  • Glover v. BIC Corp., Nos. 91-35793
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 26, 1993
    ...P.2d 617, 619 (1977). "[N]egligence may be established not only by direct evidence, but also by circumstantial evidence." Clubb v. Hanson, 272 Or. 236, 241, 536 P.2d 528, 531 We conclude Glover produced substantial evidence to show breach of the standard of care owed by BIC. Glover produced......
  • Rice v. Hyster Co.
    • United States
    • Supreme Court of Oregon
    • September 25, 1975
    ...1080 (1904). See also In re Reuben G. Lenske, 269 Or. 146, 523 P.2d 1262, 1268 (1974), and Clubb v. Hanson, 75 Or.Adv.Sh. 2084, 2087--88, 536 P.2d 528 (1975). The trial court did not err in denying the motion for Finding no error, the judgment of the trial court is affirmed. ---------------......
  • Building Structures, Inc. v. Young
    • United States
    • Supreme Court of Oregon
    • December 10, 1998
    ...damages, plaintiff waived objection by failing to object before court received the verdict and discharged the jury); Clubb v. Hanson, 272 Or. 236, 245-47, 536 P.2d 528 (1975) (defendants waived any error or irregularity in the jury's special findings of fact by failing to object when the ve......
  • Request a trial to view additional results
7 cases
  • Glover v. BIC Corp., Nos. 91-35584
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 29, 1993
    ...P.2d 617, 619 (1977). "[N]egligence may be established not only by direct evidence, but also by circumstantial evidence." Clubb v. Hanson, 272 Or. 236, 241, 536 P.2d 528, 531 We conclude Glover produced substantial evidence to show breach of the standard of care owed by BIC. Glover produced......
  • Glover v. BIC Corp., Nos. 91-35793
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 26, 1993
    ...P.2d 617, 619 (1977). "[N]egligence may be established not only by direct evidence, but also by circumstantial evidence." Clubb v. Hanson, 272 Or. 236, 241, 536 P.2d 528, 531 We conclude Glover produced substantial evidence to show breach of the standard of care owed by BIC. Glover produced......
  • Rice v. Hyster Co.
    • United States
    • Supreme Court of Oregon
    • September 25, 1975
    ...1080 (1904). See also In re Reuben G. Lenske, 269 Or. 146, 523 P.2d 1262, 1268 (1974), and Clubb v. Hanson, 75 Or.Adv.Sh. 2084, 2087--88, 536 P.2d 528 (1975). The trial court did not err in denying the motion for Finding no error, the judgment of the trial court is affirmed. ---------------......
  • Building Structures, Inc. v. Young
    • United States
    • Supreme Court of Oregon
    • December 10, 1998
    ...damages, plaintiff waived objection by failing to object before court received the verdict and discharged the jury); Clubb v. Hanson, 272 Or. 236, 245-47, 536 P.2d 528 (1975) (defendants waived any error or irregularity in the jury's special findings of fact by failing to object when the ve......
  • Request a trial to view additional results

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