Dunning v. Northwestern Electric Co.

CourtSupreme Court of Oregon
Writing for the CourtKelly
Citation206 P.2d 1177,199 P.2d 648,186 Or. 379
Decision Date14 April 1949
PartiesDUNNING <I>v.</I> NORTHWESTERN ELECTRIC CO.
186 Or. 379
199 P.2d 648
206 P.2d 1177
DUNNING
v.
NORTHWESTERN ELECTRIC CO.
Supreme Court of Oregon.
Argued October 19, 1948.
Petition for rehearing argued April 14, 1949.
Affirmed November 16, 1948.
Reversed June 7, 1949.

ON THE MERITS

Appeal and error — Jury's finding — Substantial testimony

1. The Supreme Court will not interfere with jury's finding supported by substantial testimony, and will not substitute its judgment for that of jury on questions of fact.

Damages — Award justified

2. Evidence warranted finding that 45 year old man who had life expectancy of 24.54 years and who had earning capacity of $275 per month sustained a fracture of cervical vertebrae and that such injury resulted in permanent total disability, justifying award of $20,000 damages.

Electricity — Pole — Failure to properly brace

3. Evidence was sufficient to show that plaintiff motorist collided with pole which defendant electric company had negligently failed to properly brace with guy wires and had permitted to fall across traveled portion of highway, warranting recovery of damages for personal injuries sustained by motorist.

Evidence — Facts — Negotiation for compromise

4. In action for injuries sustained when motorist collided with electric company's power pole, company's letter to plaintiff referring to "fallen pole" into which motorist ran was admissible under statute permitting proof of admissions of particular facts made in negotiation for compromise, where letter was one step in a contemplated compromise, notwithstanding that letter contained no reference to offer of compromise. O.C.L.A. § 10-302.

Trial — Instruction — Negligence

5. In action for injuries sustained when motorist collided with electric company's power pole, refusal to instruct that motorist's operation of automobile with one or more wheels off roadway was negligence, was not error, where defendant did not charge in specifications of negligence that motorist so operated the automobile and motorist's evidence did not disclose such operation.

ON PETITION FOR REHEARING

Electricity — Injuries — Negligence — Proximate cause

6. Power company was not liable for motorist's injuries unless one or more of motorist's charges of negligence alleging that pole which he struck was decayed, was inadequately braced and should have been replaced with a new pole were sustained, and

[186 Or. 380]

not even then unless the negligence was the proximate cause of injury.

Electricity — Duty — Travelers — Poles — Reasonably safe

7. Electric power company owed duty to motorist and other travelers on highway to maintain its poles in a reasonably safe condition.

Appeal and error — Evidence most favorable to plaintiff

8. On appeal by defendant from a judgment for plaintiff, Supreme Court would give effect to evidence most favorable to plaintiff.

Evidence — References made in letters — Admissions

9. In action against electric power company by motorist for injuries sustained when motorist collided at night with power pole or a part of a pole which had allegedly fallen and which was allegedly lying in highway, wherein company contended that accident occurred because motorist struck standing pole or guy wire of standing pole, references made in company's letters and in remittance advice to pole lying in highway and to fallen pole, were admissions by company.

Trial — Admissions — Explanation — Jury's duty

10. Where admissions made by defendant were introduced in evidence, and defendant's agent who made admissions attempted to explain them, it was jury's duty to determine whether explanation had robbed the admissions of their probative value.

Appeal and error — Admissions still part of evidence notwithstanding explanation

11. On appeal by defendant from judgment for plaintiff it was duty of Supreme Court to deem that admissions made by defendant were still a part of the evidence, notwithstanding explanation by defendant's agent who made the admissions.

Electricity — Motorist — Burden — Substantial evidence — Negligence

12. Motorist had burden to present substantial evidence showing that electric company's negligence caused the pole which he struck to fall onto the highway, or that, if pole got on pavement without company's fault, to present substantial evidence showing a sufficiently long period of time had elapsed to have enabled company in exercise of reasonable diligence, to have removed pole from highway.

Electricity — Evidence insufficient to establish company's negligence

13. In action against power company by motorist for injuries sustained when motorist collided at night with power pole or a part of a pole which had allegedly fallen and which was allegedly lying in highway, evidence was insufficient to establish that company's negligence caused the pole to fall on the highway.

[186 Or. 381]

Negligence — Res ipsa loquitur — Instrumentalities

14. The res ipsa loquitur rule is applicable only to instrumentalities which inflict no injury when those in charge exercise ordinary care.

Negligence — Res ipsa loquitur — Circumstances of case unexplained — Justify inference of negligence

15. The res ipsa loquitur rule can be applied only when circumstances of the case unexplained justify the inference of negligence.

Negligence — Res ipsa loquitur — Satisfactory circumstances from which an inference of negligence may be drawn

16. The res ipsa loquitur rule deems as satisfactory circumstances from which an inference of negligence may safely be drawn, proof showing injury, exclusive possession of the injury-inflicting instrumentality by alleged tortfeasor, nonparticipation by victim, and fact that when due care is exercised, the instrumentality injures no one.

Negligence — Inference of negligence — Res ipsa loquitur — Permissive

17. The inference of negligence under the res ipsa loquitur rule is only permissive and not mandatory.

Negligence — Res ipsa loquitur — Rebuttable

18. The res ipsa loquitur rule is always rebuttable.

Electricity — Res ipsa loquitur — Not applicable

19. In action against electric power company by motorist for injuries sustained when motorist collided at night with power pole or a part of a pole which had allegedly fallen and which was allegedly lying in highway, res ipsa loquitur rule was not applicable, where pole had stood in public thoroughfare six and one-half feet from edge of pavement, so that company did not have exclusive control over place where pole stood.

Evidence — Circumstantial evidence — Other evidence showing that the favorable inference is the most logical

20. In circumstantial evidence, in addition to permitting an inference favorable to proponent, authorizes other inferences, some of which are hostile to him, proponent must go on and present other evidence showing that the favorable inference is the most logical.

Evidence — Payment by defendant's agent to motorist — Not an admission of liability where motorist told that company had no information about accident except that given to it by motorist

21. Fact that electric power company's agent paid certain sum of money to motorist who claimed to have been injured when his truck struck power pole allegedly lying in highway at night, was

[186 Or. 382]

not an admission of liability on part of company, where at time when money was paid to motorist he was told that company had no information about the accident except that given to it by the motorist, and that the money was being given to him in reliance on his word.

Electricity — Evidence insufficient to establish that company was negligent

22. Evidence was insufficient to establish that company was negligent in failing to remove the pole which motorist struck within a reasonable time after discovering that it was allegedly present on highway or that company, in exercise of reasonable diligence, could have discovered the pole.

 See 29 C.J.S., Electricity, § 39.
                 31 C.J.S., Evidence, § 287.
                 84 A.L.R., 702.
                 98 A.L.R., 487.
                 102 A.L.R., 1172.
                 15 Am. Jur., 649.
                 18 Am. Jur., 484, 496.
                

Appeal from Circuit Court, Multnomah County.

MARTIN W. HAWKINS, Judge.

John R. Becker, of Portland, argued the cause for appellant. With him on the brief were Laing, Gray & Smith and Henry S. Gray of Portland.

Frank C. Hanley, of Portland, argued the cause and filed a brief for respondent.

Before ROSSMAN, Chief Justice, and LUSK, KELLY and HAY, Justices.

Personal injury action by Merton C. Dunning against Northwestern Electric Company, a corporation. From a judgment for the plaintiff, the defendant appeals.

AFFIRMED.

KELLY, J.


This is an action for damages to recover for personal injuries sustained by plaintiff between 1:00 and

186 Or. 383

1:30 A.M. on December 21, 1945, while driving a Dodge pickup automobile in an easterly direction on Mill Plain Road, a public highway, at a point thereon just east of the city limits of Vancouver, Clark County, Washington.

Plaintiff claims that defendant negligently permitted a certain power pole on its power line on the south side of said highway to remain in use after it had become rotten, old, worn and defective; that said pole had fallen across and obstructed said highway at said point; that plaintiff's automobile collided therewith and as a result of said collision plaintiff sustained a permanent injury in that the cervical vertebrae of his spinal column were compressed and fractured. From a judgment in favor of plaintiff, in the sum of $20,000, defendant appeals.

Plaintiff's version of the facts is materially different from that of defendant's witness who said that he saw the collision. The time and place of the accident are not in issue. The controlling issue arises with respect to the course taken by plaintiff when the collision occurred.

Plaintiff testified that at about one o'clock in the morning of December 21, 1945, during darkness, while it was misty, the wind was blowing a little and there was very little fog, he was going east on his right or southerly side of...

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14 practice notes
  • Kaufman v. Fisher
    • United States
    • Supreme Court of Oregon
    • May 23, 1962
    ...court cannot say that reasonable men could not draw it.') See, 34 Neb.L.Rev. 102 (1955). But cf., Dunning v. Northwestern Electric Co., 186 Or. 379, 199 P.2d 648 (1948), 206 P.2d 1177 However, if he does introduce evidence to eliminate other causes, it will strengthen the inference that def......
  • Gow v. Multnomah Hotel
    • United States
    • Supreme Court of Oregon
    • November 28, 1950
    ...or circumstances which, when found in combination, raise an inference of negligence. As said in Dunning v. Northwestern Electric Co., 186 Or. 379, 199 P.2d 648, 206 P.2d 1177, 1190: '* * * That rule [res ipsa loquitur] is merely a process of common sense reasoning. It assists in drawing log......
  • Powell v. Moore
    • United States
    • Supreme Court of Oregon
    • September 20, 1961
    ...1951, 191 Or. 65, 228 P.2d 791; Ritchie v. Thomas et al., 1950, 190 Or. 95, 224 P.2d 543; Dunning v. Northwestern Electric Co., 1948, 186 Or. 379, 199 P.2d 648, reversed on rehearing 1949, 186 Or. 399, 206 P.2d 1177; Suko v. Northwestern Ice & Cold Storage Co., 1941, 166 Or. 557, 113 P.2d 2......
  • Ehler v. Portland Gas & Coke Co.
    • United States
    • Supreme Court of Oregon
    • June 8, 1960
    ...met if the proponent presents evidence showing 'that the favorable inference is the most logical.' Dunning v. Northwestern Electric Co., 186 Or. 379, 432, 199 P.2d 648, 206 P.2d 1177, In the recent case of Eitel v. Times, Inc., Or., 352 P.2d 485, 488, in determining whether or not there is ......
  • Request a trial to view additional results
14 cases
  • Kaufman v. Fisher
    • United States
    • Supreme Court of Oregon
    • May 23, 1962
    ...court cannot say that reasonable men could not draw it.') See, 34 Neb.L.Rev. 102 (1955). But cf., Dunning v. Northwestern Electric Co., 186 Or. 379, 199 P.2d 648 (1948), 206 P.2d 1177 However, if he does introduce evidence to eliminate other causes, it will strengthen the inference that def......
  • Gow v. Multnomah Hotel
    • United States
    • Supreme Court of Oregon
    • November 28, 1950
    ...or circumstances which, when found in combination, raise an inference of negligence. As said in Dunning v. Northwestern Electric Co., 186 Or. 379, 199 P.2d 648, 206 P.2d 1177, 1190: '* * * That rule [res ipsa loquitur] is merely a process of common sense reasoning. It assists in drawing log......
  • Powell v. Moore
    • United States
    • Supreme Court of Oregon
    • September 20, 1961
    ...1951, 191 Or. 65, 228 P.2d 791; Ritchie v. Thomas et al., 1950, 190 Or. 95, 224 P.2d 543; Dunning v. Northwestern Electric Co., 1948, 186 Or. 379, 199 P.2d 648, reversed on rehearing 1949, 186 Or. 399, 206 P.2d 1177; Suko v. Northwestern Ice & Cold Storage Co., 1941, 166 Or. 557, 113 P.2d 2......
  • Ehler v. Portland Gas & Coke Co.
    • United States
    • Supreme Court of Oregon
    • June 8, 1960
    ...met if the proponent presents evidence showing 'that the favorable inference is the most logical.' Dunning v. Northwestern Electric Co., 186 Or. 379, 432, 199 P.2d 648, 206 P.2d 1177, In the recent case of Eitel v. Times, Inc., Or., 352 P.2d 485, 488, in determining whether or not there is ......
  • Request a trial to view additional results

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