Frangos v. Edmunds

• Decision Date: 22 October 1946
• Citation: 179 Or. 577,173 P.2d 596
• Parties: FRANGOS <I>v.</I> EDMUNDS ET AL.
• Court: Oregon Supreme Court

179 Or. 577

173 P.2d 596

FRANGOSv.

EDMUNDS ET AL.

Supreme Court of Oregon.

Argued September 18, 1946.

Reversed October 22, 1946.

Appeal and error — Pleading — Motion to strike

1. Plaintiff was not prejudiced by ruling sustaining defendant's motion to strike part of codefendant's answer, where portion stricken was merely a pleading of evidence in nature of admission against interest which, if admissible, could be proven without being pleaded.

Pleading — Power of court

2. The trial court possesses inherent power independently of statute to strike pleadings or portions thereof.

Automobiles — Evidence — Signal device

3. In action for injuries to passenger in bus which collided with rear of old school bus whose driver was called by plaintiff as adverse witness and testified that it was impossible to give a hand signal and that bus was equipped with mechanical arm device which he did not use, evidence whether device had been approved by Secretary of State was properly excluded as immaterial where undisputed evidence showed that no signal was ever given by any mechanical arm device.

Trial — Expert witness — Courts

4. Where physician on basis of his examination of plaintiff and history of case testified that physician diagnosed plaintiff's injury as a concussion of the brain and that generally greatest injury to brain was found adjacent to external injury, questions whether a blow of kind described in evidence could produce injury to brain at any point other than adjacent to external laceration were proper, and physician should have been permitted to complete his testimony as to character and effect of concussion, and court's comment that physician had gone beyond proper explanation was improper.

Appeal and error — Court's comment

5. Where physician on basis of his examination of plaintiff and history of case testified that physician diagnosed plaintiff's injury as a concussion of the brain and that generally greatest injury to brain was found adjacent to external injury, court's improper comment on evidence and not allowing physician to complete his testimony as to character and effects of concussion did not constitute reversible error.

Witnesses — Objections

6. Objection to repetitious question was properly sustained.

Trial — Court's comment

7. In personal injury action wherein physician was asked why he took spinal punctures, court's comments, in reply to objection of counsel that physician had already explained that, were improper, especially where court stated what court supposed was indicated when blood was found in spinal fluid.

Evidence — Hearsay

8. In personal injury action, question propounded to plaintiff's expert on cross-examination whether it was expert's recommendation to doctor that "case should be closed" was objectionable, since what expert recommended to doctor was hearsay and recommendation that "case should be closed" might mislead jury into belief that it was litigation which should be closed rather than the medical services.

Trial — Court's comment

9. Where question propounded by counsel on cross-examination was improper, court's giving of its interpretation of memorandum which was not in evidence and in effect answering counsel's question constituted improper comment.

Trial — Evidence

10. Where plaintiff in direct examination testified that after accident he suffered pain in his eye with impairment of its use and that he had no control over muscles in the area, plaintiff's statement "You know, well, it is paralyzed", should not have been stricken, since "paralysis" is the abolition of function, especially the loss of power of voluntary motion, or of sensation in any part of the body, so that statement was merely a summary of what plaintiff had already said.

Automobiles — Evidence excluded

11. Where collision occurred after vehicles had passed traffic light, evidence concerning driver's action before he came to amber light was properly excluded.

Trial — Court's comment

12. Where extent of cut that plaintiff sustained in collision was material, court's comment, after counsel asked witness regarding nature of cut, "is it material?" and "in what way?" by indirection commented adversely upon plaintiff's case and was improper.

Evidence — Hearsay

13. A hospital patient's complaints of present pain made to patient's wife was improperly excluded as hearsay.

Appeal and error — Evidence excluded

14. In personal injury action, error in excluding evidence of plaintiff's complaints to his wife of present pain, on grounds that

such complaints were immaterial and hearsay, which amounted to general declaration that all preceding testimony of wife concerning complaints was incompetent, was prejudicial.

Trial — Court's comment

15. In personal injury action, plaintiff's wife was competent to testify whether plaintiff's hearing was "all right" before the accident, and court's pronouncement that plaintiff's wife "wouldn't know whether he could hear or not" was an unwarranted comment on the evidence.

Appeal and error — Assignment of error

16. Error in unwarranted comment on evidence by trial court was waived by failure to make specific assignment thereof in appellant's brief.

Trial — Presence of judge

17. Trial judge should be present in all stages of trial, including counsel's argument.

Appeal and error — Presence of judge

18. In leaving the bench, trial judge made no "ruling" within statute providing that all adverse rulings except those contained in instructions given shall import an exception in favor of party against whom ruling was made.

Appeal and error — Error of trial judge

19. If counsel would avail himself on appeal of error of trial court committed during course of trial, counsel must advise trial judge of counsel's position by some offer, objection, motion, or other appropriate action, so that trial court may void or rectify the error.

Appeal and error — Bill of exceptions

20. The bill of exceptions imports absolute verity.

Appeal and error — Bill of exceptions

21. The Supreme Court is bound by certificate of trial judge as to statement of objections contained in bill of exceptions notwithstanding discrepancy may occur between bill and transcript of official reporter.

Trial — Judge leaving courtroom

22. In leaving the courtroom for substantial period of time while counsel were arguing the case before jury, trial judge committed error which would be noticed by the Supreme Court in view of confused state of record.

Carriers — Instructions — Reasonable care

23. In action against bus owner as contract carrier for injuries to passenger in collision, instruction that carrier's duty was

measured by rule of reasonable care under all circumstances was proper.

Damages — Mortality tables

24. Where there is substantial evidence of permanent injury, standard mortality tables may become admissible at least if earning power is permanently impaired.

Trial — Instructions — Mortality tables

25. In personal injury action, requested instruction which implied that life expectancy of plaintiff was determined by mortality tables was properly refused, since life expectancy, if material, was itself a question of fact to be determined by jury from consideration of tables and all other relevant testimony.

Trial — Instructions — Objection

26. In action for injuries to passenger in defendant's bus which collided with codefendant's vehicle, where jury might have considered court's instruction regarding motorist's duty to observe traffic signals and to obey traffic officer's directions as equivalent to peremptory ruling that plaintiff could not recover against co-defendant, exception to instruction on ground that there was no officer at time of collision sufficiently advised court as to instruction to which it referred and as to nature of objection.

Trial — Instructions — Traffic officer

27. In action for injuries to passenger in defendant's bus which collided with codefendant's vehicle, instruction that if codefendant was following directions of traffic officer immediately before accident jury should find for codefendant was erroneous where both vehicles continued some 100 feet beyond the blinker light and the officer so that jury might consider instruction as equivalent to peremptory ruling that plaintiff could not recover against codefendant.

Negligence — Reasonable care

28. The rule of reasonable care under all the circumstances applies in emergencies, the emergency being one of circumstances to be considered.

Automobiles — Emergency — Negligence

29. When motorist finds himself confronted by emergency constituting impending danger and alternative means of escape from collision are presented so that it becomes a matter of judgment as to what course to follow, he will not be liable for mistaken judgment if he acted with such care as a reasonable person would exercise in such emergency, notwithstanding choice he makes is not such as a reasonable person with ample opportunity for deliberation would make, but motorist cannot avail himself of emergency doctrine if emergency results from his negligence.

Carriers — Instructions — Emergency

30. In action for injuries to passenger in defendant's bus which collided with rear of codefendant's old school bus on four-lane highway, instruction on emergency should not have been given where if emergency arose because of negligence of defendant he could not avail himself of the doctrine, and if emergency did not arise through his negligence doctrine would still not apply because after it arose no alternative courses presented themselves for sudden choice.

Witnesses — Trial judge — Duties

31. Trial judge is not a mere moderator but is the governor of trial for purpose of administering justice between parties, and trial judge may in exercise of sound discretion control examination of witnesses and may in furtherance of impartial justice examine a witness, though he should not indicate to jury his opinion on the merits, nor comment...