Ewen v. McLean Trucking Co.

• Jurisdiction: Oregon
• Parties: Irving G. EWEN, as Guardian ad litem for Sophie S. Ewen, an incapacitated person, Respondent, v. McLEAN TRUCKING COMPANY, a foreign corporation; James David Owens, Defendants, and International Harvester Company, a foreign corporation, Appellant. A8004-01826; CA A25947.
• Citation: Ewen v. McLean Trucking Co., 689 P.2d 1309, 70 Or.App. 595 (Or. App. 1984)
• Court: Oregon Court of Appeals
• Decision Date: 31 October 1984

Page 1309

689 P.2d 1309

70 Or.App. 595

Irving G. EWEN, as Guardian ad litem for Sophie S. Ewen, an incapacitated person, Respondent, v. McLEAN TRUCKING COMPANY, a foreign corporation; James David Owens, Defendants and International Harvester Company, a foreign corporation, Appellant.

A8004-01826; CA A25947.

Court of Appeals of Oregon.

Argued and Submitted Jan. 9, 1984.

Decided Oct. 31, 1984.

E. Joseph Dean, Portland, argued the cause for appellant. With him on the briefs were Charles F. Adams and Joyce M. Bernheim, Portland.

Charles J. Merten, Portland, argued the cause for respondent. With him on the brief were Karen L. Fink, Richard S. Yugler and Merten & Fink, Portland.

Before JOSEPH, P.J., and VAN HOOMISSEN and YOUNG, JJ.

YOUNG, Judge.

In this personal injury action, plaintiff sought damages for injuries sustained by his ward when she was struck by a truck. The truck was manufactured by defendant International Harvester Company (I.H.), owned by defendant McLean Trucking Company (McLean Trucking) and driven by defendant James Owens, a McLean employe. Plaintiff alleged negligence against McLean Trucking and Owens and a strict products liability claim against I.H. for an alleged design defect. The jury apportioned fault to plaintiff of 25%, to defendants Owens and McLean of 25%, and to I.H. of 30%. ¹ I.H. appeals, raising numerous assignments of error; we affirm.

On September 10, 1979, plaintiff's ward, Mrs. Ewen, a 75-year-old woman, and a friend, a Mr. Swarner, were preparing to walk westward across southwest Fourth Avenue (Fourth) from the southeast corner of the intersection at southwest Alder Street (Alder). Defendant Owens was driving north on Fourth in the center lane of three lanes on the one-way street. Owens was driving an I.H. Transtar tractor and trailer. He approached the Fourth and Alder intersection and stopped for a red light. The truck's front tires were over at least one of the pedestrian crosswalk lines. Owens saw Ewen and Swarner to his right standing on the southeast corner of the intersection. She was facing east, and Swarner, who was holding his hands out to her, faced west. It appeared to Owens that Swarner was pulling her toward the east curb and that they were heading east, away from him. After Owens saw Ewen and Swarner to his right, he checked the traffic light, which was still red, and looked to his left, westward down Alder Street. He looked again at the light, which had turned green, and then looked to the left and to the right; seeing no one, he started forward.

In the meantime, as Owens was looking left, Ewen and Swarner started to cross Fourth from east to west. She is elderly and has Parkinson's Disease, so they moved slowly. Because the truck was encroaching on the crosswalk, they moved to the north, toward the middle of the intersection, in order to get around the front of the truck. When the light turned green on Fourth, Ewen and Swarner were somewhere near the front of the truck. Owens did not see them and, as the truck pulled forward, it struck them, injuring Ewen and killing Swarner.

We first review I.H.'s contention that the trial court erred in refusing to withdraw from the jury, or direct a verdict against plaintiff's allegations of defect concerning right side visibility. Plaintiff's sixth amended complaint alleged:

"XIX.

"* * *

"3. Said truck was unreasonably dangerous and defective for use by reason of a defective design in that it had an obstructed and limited vision which prevented the driver from seeing pedestrian traffic to the immediate front and also to the right of the truck."

I.H. contends that there was insufficient evidence to permit the jury to infer that a visibility window in the passenger door or a convex mirror would have improved right side visibility and prevented plaintiff's injury.

In order to submit a product liability claim to a jury, there must be sufficient evidence to show a causal relationship between the alleged defect and the accident. O'Lander v. Int. Harvester Co., 260 Or. 383, 391, 490 P.2d 1002 (1971). I.H. essentially argues that the evidence shows that, although Ewen and Swarner approached the passenger door from the right and went around the side of the truck to the front, Owens, after seeing them at the curb on the right side, looked over to his left without looking back, straight ahead or to the right until after the light on Fourth had turned green. Therefore, when Owens turned to look to the right, Ewen and Swarner could not have been seen because they were already in front of the truck. Although this may be a reasonable interpretation of the evidence, it is not a construction most favorable to the plaintiff. Plaintiff's witness, Ivory, testified that Ewen and Swarner were in front of the right front side of the truck when it moved forward. In fact, defendant's exhibit, drawn by Ivory on cross-examination, placed Ewen and Swarner directly in front of the right front tire when the truck pulled forward. Additionally, Owens testified that after he had looked to the right, but before he had moved the truck forward, he had to let off the brake, push in the clutch and engage the gear. The jury could reasonably have inferred that, because of the time involved in these motions, Ewen and Swarner were even further east in the crosswalk than where Ivory placed them and that a convex mirror or a visibility window in the passenger door would have allowed Owens to see them. Although other witnesses testified that Ewen and Swarner were in front of the left front side of the truck, in considering the trial court's denial of defendant's motion for a directed verdict, we resolve evidentiary conflicts in plaintiff's favor. Bixler v. First National Bank of Oregon, 49 Or.App. 195, 619 P.2d 895 (1980).

The next assignment of error is that the trial court erred in refusing to strike plaintiff's claim of defective design due to limited forward vision and to direct a verdict against that claim. I.H. asserts that the evidence showed "as a physical fact" that the pedestrians would have been visible had the driver looked. We disagree. The "physical facts" rule is that "a verdict or finding cannot be based on evidence which is opposed to established facts." Van Zandt v. Goodman et al., 181 Or. 80, 93, 179 P.2d 724 (1947). The testimony regarding both what Owens could see and where the parties were at the time the truck moved forward were vigorously contested. For example, the testimony of police officer Sloan, who is 6'5" tall, was that, at the scene of the accident, after the truck had been moved to the curb, he took the driver's position in the cab and that officer Herder, who is 6'1" tall, walked back and forth in front of the truck. Sloan testified that Herder had to be approximately three feet in front of the truck before he could be seen.

I.H. next contends that the jury should have been instructed to determine and compare any fault of Swarner, a non-party. I.H.'s requested instruction provided:

"In order to obtain a proper assessment of the total amount of the Plaintiff's contributory negligence under comparative fault, it must be determined in relation to all of the parties whose fault contributed to the accident, not merely those who are named as Defendants in this litigation. Consequently, if you find that Plaintiff's ward was relying upon John Swarner to assist her across the street, that Swarner acted negligently when providing assistance, and that Swarner's negligence was a cause of injury to Plaintiff, you should include Swarner's negligence when comparing the fault of all those whose conduct contributed to Plaintiff's injury. You should consider and compare Swarner's conduct only if you find that his acts were both negligent and a substantial factor in Plaintiff's injury."

ORS 18.480 provides:

"(1) When requested by any party the trier of fact shall answer special questions indicating:

" * * * "(b) The degree of each party's fault expressed as a percentage of the total fault attributable to all parties represented in the action."

See also ORS 18.470. Swarner is not a party to the action; neither do the pleadings place his alleged fault in issue. There is no error.

Next, we consider I.H.'s argument that the trial court erred in admitting testimony concerning plaintiff's emotional distress claim based upon Ewen's seeing Swarner killed. I.H. initially moved for a mistrial, then, after plaintiff's opening argument, alternatively moved for a limiting instruction. At that time the trial court stated: "If [Ewen] saw [Swarner] killed and this occurred at the accident and she had nightmares of the event, including the trauma to herself * * * it is an item of compensatory damage and * * * you may * * * prove it." Further testimony relating to her observation of Swarner's death and the resulting emotional distress was elicited from plaintiff's witness, Dr. Lebray. By the end of the trial, however, the trial judge apparently had changed his mind, because he instructed the jury that no recovery could be allowed for damages allegedly based upon Ewen's knowledge of Swarner's death. I.H. concedes that the jury instruction was proper; it contends, however, that the giving of that instruction was "like trying to unring a bell."

Comparing "the most liberal rule" set forth in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), I.H. argues that no court has allowed evidence supporting an emotional-distress claim under facts similar to the present case. Oregon courts have yet to consider a Dillon-type case, and there is no need to do so under these facts. In Dillon the California Supreme Court reversed a summary judgment and held that the plaintiff mother's claims for emotional trauma and physical injury from witnessing the death of her child as a result of the defendant's negligent operation of an automobile, alleged a sufficient prima facie case against the motorist.

Unlike Dillon, the present case...