Crosby v. Portland Ry. Co.

• Decision Date: 27 April 1909
• Citation: 53 Or. 496,101 P. 204
• Parties: CROSBY v. PORTLAND RY. CO.
• Court: Oregon Supreme Court

101 P. 204

53 Or. 496

CROSBY v. PORTLAND RY. CO.

Supreme Court of Oregon

April 27, 1909

On petition for rehearing. Petition denied.

For former opinion, see 100 P. 300.

KING, J.

It is first urged in support of defendant's petition for rehearing that prejudicial error was occasioned by the admitting in rebuttal of the testimony offered by plaintiff with reference to and in the admission of her shoe in evidence. There can be no doubt that this was a matter resting within the sound discretion of the court. The court's discretion in such matters is a large one, an abuse of which will not be presumed. 9 Enc.Ev. 234. After a careful examination of the record, we were fully convinced that this was a matter concerning which no abuse of discretion was shown and so held; and, after a re-examination thereof, we are still of that opinion, and think there is little room for discussion upon the subject. B. & C.Comp. §§ 132, 842, expressly gives to the court this discretionary power; and the manner in which the court may satisfy itself as to the propriety of permitting evidence to be introduced out of its order, in the absence of a statute to the contrary, is also a matter for its determination under the circumstances as they arise, which, like the admission of the testimony out of the usual order, is subject to review for abuse of discretion only. State v. Hunsaker, 16 Or 497, 19 P. 605, to which our attention is directed, was a criminal case, and was reversed because, in the opinion of the appellate court, the trial court abused its discretion in the admission of the evidence there mentioned, and is not analogous to the case under consideration. It serves however, to illustrate that a reversal may, and should, occur where there has been an abuse of the privilege there given the court, but not that a reversal must in all cases be granted where testimony is admitted in that manner. To so hold would be to ignore the plain provisions of the statute on the subject. The case of Davis v. Emmons, 32 Or 389, 51 P. 652, is more in point. There it was contended that the court erred in permitting plaintiff to reopen the case after defendant had rested, and to call a witness to prove the original cause of action, in considering which the court at page 395 of 32 Or., at page 653, 51 Pac., of the opinion, states the rule thus: "The order of proof at the trial of a cause is a matter regulated by the sound discretion of the trial court (citing the Code), and, like all other questions of that character, will not be reviewed except for an abuse thereof, which is not apparent in the case at bar." For other cases discussing, applying, and adopting this principle, see 9 Enc.Ev. 232, note 1; Bennett v. Stephens, 8 Or. 444; Osmun v Winters, 30 Or. 177, 46 P. 780; Jones v. Peterson, 44 Or. 161, 74 P. 661; State v. Remington, 50 Or. 99, 91 P. 473; First Nat. Bank v. McCullough, 50 Or. 509, 93 P. 366, 17 L.R.A. (N.S.) 1105.

It is also zealously insisted that we are at fault in holding there was no prejudicial error in the giving of the instruction relative to the "shifting of the burden of proof," etc. In the interest of brevity, as well as for the reason that we deemed the question clearly settled by previous decisions of this court, including the case of Boyd v Portland Electric Co., 41 Or. 336, 68 P. 810, which we cited with approval, we did not enter into an extended discussion of the subject. However, since it is still maintained that the holding in the Boyd Case is not in conflict with defendant's contention here, we will further advert thereto. The instruction complained of was as follows: "In cases of this character, the law provides that where it is shown that an accident is caused by the breaking or sagging of a wire, or by something going wrong in the business of a defendant engaged, as this defendant was, in propelling cars by electricity by means of overhead wires, and it is further shown that a hanger which broke and a wire which sagged and which caused an accident were the property of and in the custody and control of the defendant, the law presumes then, or raises the presumption, that the defendant was negligent and that the accident was caused by its negligence. And when this is shown, provided there was no contributory negligence shown on the part of the plaintiff, the burden of proof is shifted to the defendant to show to your minds by a preponderance of evidence that it, the defendant, was not at fault, and that the accident happened without any negligence or want of ordinary care upon its part." The instruction quoted, with the exception of a slight variation of a few words to fit the case at hand, is the same as in the Boyd Case. Indeed, it appears to have been taken from the instruction there given. The italicized part is the portion especially challenged, with respect to which the language in both cases is identical, and the similarity of the facts presented is ample to make the rules of law governing the evidence adduced...