Hanks v. Norby

• Decision Date: 25 February 1936
• Citation: Hanks v. Norby, 152 Or. 610, 54 P.2d 836 (Or. 1936)
• Parties: HANKS v. NORBY.
• Court: Oregon Supreme Court

54 P.2d 836

152 Or. 610

HANKS v. NORBY.

Supreme Court of Oregon

February 25, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Alfred Hanks, Jr., by Alfred Hanks, his guardian ad litem against Mangus Norby for damages sustained in an automobile collision. Judgment for defendant, and plaintiff appeals.

Affirmed.

Henry Collier, of Portland (Davis & Harris, Charles W. Robison, and Collier, Collier & Bernard, all of Portland, on abstract of record; Collier, Collier & Bernard, of Portland on the brief), for appellant.

W. H Morrison, of Portland (Maguire, Shields & Morrison, of Portland, on the brief), for respondent.

KELLY Justice.

Plaintiff is a boy who, at the time of the collision in suit, which occurred March 8, 1934, was ten years old. He was riding in a truck driven by his father. Specific charges of negligence on the part of defendant are set forth in the complaint. These are denied in the answer, and it is charged therein that the collision occurred wholly by reason of negligence on the part of plaintiff's father while driving the truck in which plaintiff was riding.

Two errors are assigned. The first alleged error consisted in giving the following instruction: "You are instructed that the law recognizes what is known as unavoidable accidents. An accident may happen and a person may be injured without any negligence on the part of any person therein, and if you believe from the evidence in this case that the accident referred to in plaintiff's complaint was the result of a pure accident or misadventure, and was, under the circumstances, unavoidable, then, of course, your verdict will be for that defendant."

The second alleged error was in refusing to grant plaintiff's motion for a new trial.

This court has recognized and approved the use of the term "unavoidable accident" as meaning an accident not resulting from the negligence of defendant. Meaney v. Portland Electric Power Co., 131 Or. 140, 282 P. 113; Archer v. Gage, 126 Or. 532, 270 P. 521, and Daniels v. Riverview Dairy, 132 Or. 549, 287 P. 77.

Other courts have given it the meaning that the accident was not caused by the negligence of either party to the case. Wilson v. Roach, 101 Okl. 30, 222 P. 1000; Galveston, H. & S. A. Ry. Co. v. Gormley (Tex.Civ.App.) 35 S.W. 488; Prahl v. Hogensen, 185 Wis. 37, 200 N.W. 660. See other cases cited in note 22 of section 4, p. 260, vol. 1, Blashfield's Cyc. of Automobile Law (1927 Ed.).

If the term "unavoidable accident" be given either of the foregoing meanings, the record of the case at bar, as far as we are able to understand it, justifies the giving of the instruction in question. In other words, the alleged negligence of the driver of the truck may have been shown to be the sole cause of the collision.

If the term "unavoidable accident" is to be given a meaning synonymous with "an act of God," the instruction would be improper; but it would not necessarily constitute reversible error.

The instruction which the court gave defines the term "unavoidable accident" as one happening without any negligence on the part of any person therein. This differentiates it from one wherein the term is used synonymously with "an act of God." The jury could not have been led by it to think that the court instructed them that they were called upon to determine whether the collision was caused without the intervention of human agency.

Plaintiff's motion for a new trial was based upon newly discovered testimony. This testimony consisted of...