Hanson v. Schrick

• Decision Date: 22 November 1938
• Citation: 85 P.2d 355,160 Or. 397
• Parties: HANSON <I>v.</I> SCHRICK
• Court: Oregon Supreme Court

160 Or. 397

85 P.2d 355

HANSON

v. SCHRICK

Supreme Court of Oregon.

Argued October 4, 1938.

Reargued November 22, 1938.

Reversed December 13, 1938.

Rehearing denied January 10, 1939.

Automobiles

1. In motorist's action for injuries sustained in intersectional collision where evidence as to speed at which motorists approached intersection was conflicting and the record failed to show the speed at which motorist was traveling at distance of more than 100 feet from the intersection, exclusion of evidence of motorist's speed at a point one-half mile from intersection on the ground that it was too remote was an abuse of discretion.

Automobiles

2. In action for injuries sustained in automobile collision, discretion is vested in the trial court to determine whether speed at some place other than that of the accident is too remote.

Appeal and error

3. In motorist's action for injuries sustained in intersectional collision, where officer testified that he smelled beer on motorist's breath, and evidence as to whether motorist was intoxicated was conflicting, instruction that evidence of smell of liquor on the breath or of having been drinking intoxicating liquor was not sufficient to prove intoxication or that one is under the influence of intoxicating liquor, was reversible error.

Automobiles

4. In motorist's action for injuries sustained in intersectional collision, where evidence was conflicting, whether motorist was under influence of intoxicating liquor at time of the accident was for the jury.

Trial

5. It is error for the trial court to select a single part of the evidence and instruct the jury as to its probative value.

Trial

6. In motorist's action for injuries sustained in intersectional collision where map prepared by defendant was used throughout the trial by witnesses of both plaintiff and defendant, and was not objected to until testimony before jury had been concluded, admission of map as an exhibit and permitting it to go to the jury along with other exhibits was erroneous, but not prejudicial to defendant.

BEAN, C.J., and ROSSMAN and KELLY, JJ., dissenting.

                  See 5 Am. Jur. 750, 918
                

In Banc.

Appeal from Circuit Court, Multnomah County.

JAMES P. STAPLETON, Judge.

Action by James W. Hanson against R.J. Schrick and another for injuries sustained in an intersectional collision between an automobile driven by plaintiff and an automobile driven by the named defendant. From a judgment for the plaintiff for $10,000, named defendant appeals.

REVERSED. REHEARING DENIED.

John F. Reilly, of Portland (Wilson & Reilly of Portland, on the brief), for appellant.

Milton R. Klepper, of Portland (Klepper & Imlay, of Portland, on the brief), for respondent.

BELT, J.

This is an action to recover damages for personal injuries sustained in an automobile accident occurring in the city of Portland on May 14, 1937, near the center of the intersection of Vancouver and Killingsworth avenues. At the conclusion of plaintiff's case in chief, a motion for a judgment of involuntary nonsuit was allowed as to the defendant Associated Oil Company for the reason that, at the time of the accident, the defendant Schrick was not acting within the scope of his employment but was engaged in his own business. From a judgment for $10,000 based upon a verdict in favor of the plaintiff, the defendant Schrick appeals.

In this controversy there is sharp conflict in the testimony of the witnesses relative to the charges of negligence. Vancouver avenue, upon which defendant was traveling in a northerly direction, was a through street and, at its entrance to the intersection in question, there was a two-button caution sign. In Killingsworth avenue, where it enters the intersection, there was a stop sign. Several witnesses testified that plaintiff, who was going west on Killingsworth avenue, failed to stop at the intersection but went through the same at from 35 to 45 miles an hour without reducing his speed. Other witnesses were equally positive that plaintiff brought his car to a complete stop and proceeded through the intersection to point of collision at a very slow rate of speed. It is noteworthy, however, that the plaintiff on May 26, 1937, about six days after leaving the hospital, signed a statement concerning the accident, reciting among other things that he slowed his car down as he entered the intersection, but "I did not make a complete stop." While in the hospital and a day before leaving the same, plaintiff and his employer executed a promissory note to cover repairs to defendant's automobile. The evidence is likewise conflicting relative to the speed of the automobile which defendant was driving. Some witnesses testified that he approached the intersection at 20 or 25 miles an hour but greatly reduced his speed as he entered the same and that, at point of collision, his automobile had come to an almost complete stop. On the other hand there is evidence that defendant was driving 40 or 45 miles an hour and did not reduce his speed while in the intersection. The foregoing statement of facts concerns questions for the determination of a jury. It is set forth merely as a background for consideration of the assignments of error on appeal.

Relative to the issue of speed, the defendant offered evidence to show the manner in which the plaintiff was driving his automobile about one-half mile distant from the point of accident. A witness was asked at what rate of speed, in his judgment, the Hanson automobile passed between him and the curb on Williams avenue, some eight blocks south of Killingsworth. Upon objection being sustained to such question, counsel for defendant made the following formal offer of proof:

"Defendant offers to prove by the question as to the speed of the Hanson car when it passed between the witness' car and the curb on Williams Avenue that the car was traveling, — the Hanson car was traveling approximately fifty miles an hour. Defendant also offers to prove by the testimony of this witness, in answering the questions about whether the car slowed down appreciably between the time it passed the witness' car and Killingsworth, that it did not. And the defendant offers to prove by this witness by the question relating to the approximate speed of the automobile between the time it passed plaintiff's car and Killingsworth Avenue that it traveled at approximately the rate of fifty miles per hour. In making this offer, we offer this testimony further in connection with the testimony of the witnesses Siemens and wife as to their presence in the intersection of Williams Avenue and Killingsworth, and also on the subject of the testimony of the plaintiff that he approached Vancouver Avenue by way of Killingsworth, having turned onto that street at Union Avenue instead of Williams Avenue; and further, impeachment of the plaintiff that he was not on Williams Avenue at all that day."

The trial court was of the opinion that such evidence was too remote but stated that defendant would be permitted to show the manner in which plaintiff operated the car from the point where it turned into Killingsworth avenue, about 500 feet from place of accident.

1. In our opinion, error was committed in rejecting the above evidence as we think the jury might reasonably infer therefrom that the plaintiff drove his automobile in a careless and reckless manner at place of accident. The offer of proof should...