Hendricks v. Portland Electric Power Co.

• Decision Date: 17 June 1930
• Parties: HENDRICKS v. PORTLAND ELECTRIC POWER CO.
• Court: Oregon Supreme Court

289 P. 369

134 Or. 366

HENDRICKS v. PORTLAND ELECTRIC POWER CO.

Supreme Court of Oregon

June 17, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Grace Hendricks, by Bradley A. Ewers, her guardian ad litem, against the Portland Electric Power Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Cassius R. Peck, of Portland (Griffith, Peck & Coke of Portland, on the brief), for appellant.

Robert F. Maguire, of Portland (Bradley A. Ewers, Louis E. Schmitt Winter & Maguire, and W. H. Maguire, all of Portland, on the brief), for respondent.

BELT, J.

This is an action to recover damages for personal injuries alleged to have been sustained as a result of a collision between a street car and an automobile in the city of Portland. In the allegations of the complaint, the accident is thus described:

"On June 20th, 1927, the plaintiff was operating an automobile in a northerly direction on Second Street and approached the intersection thereof with Yamhill Street. That at said time numerous vehicles were parked along the east side of Second Street next to the curb, and plaintiff was driving said automobile in that portion of the street to the west of said parked vehicles.

"Upon nearing said intersection the plaintiff stopped her automobile to permit pedestrians to safely cross Second Street and to safely remain in a safety zone on the east side of Second Street at said intersection. After plaintiff had come to said stop and while said automobile and plaintiff's position therein were plainly visible to the defendant, it operated one of its street cars in a northerly direction along Second Street, and with great speed, force, and violence drove the same into the rear of the vehicle plaintiff was driving. * * *"

Defendant is charged with negligence as follows:

"1. The defendant failed to have said street car under control so as to be able to stop the same in time to avoid hitting and injuring plaintiff.

"2. Defendant failed to keep a lookout for traffic upon the street and particularly for the automobile in which plaintiff was riding.

"3. Defendant failed to stop said street car when the presence of the automobile in which plaintiff was riding on the street ahead of it was known to it, although there was ample time and opportunity for defendant to have stopped said street car and avoided striking said automobile and injuring this plaintiff."

Plaintiff alleges that, as a result of this negligence, she sustained injuries to her neck and back, and that her nervous system was greatly shocked. She avers "That she is a woman of a nervous temperament, and said shock and blow greatly exaggerated her nervous condition and so deranged her mental and nervous system that she shortly became insane, from which said insanity she has and does now suffer."

Through her guardian ad litem she asks general damages in the sum of $50,000, and the sum of $25,000 as special damages for loss of earnings and earning power.

The defendant, after denying the negligence charged and the alleged injuries, by answer alleges as an affirmative defense that the collision between the street car and the automobile was due solely to the negligence of the plaintiff in that (1) she stopped or parked her automobile in violation of a city ordinance; (2) she stopped or parked her automobile in such location as prevented free and unobstructed passage of the street car; (3) she failed to yield the right of way to the street car; (4) she failed to maintain a lookout for the approach of the street car; (5) she failed to exercise such reasonable care in the operation of the automobile as would have been expected from an ordinarily prudent driver under the existing circumstances. Defendant company thus alleges its version of the accident: "That on June 20th, 1927 the defendant was lawfully, carefully and prudently operating its street car in a northerly direction upon its railway track between Yamhill and Morrison Streets in said City of Portland; that as said street car was being operated as aforesaid, the plaintiff was driving and operating an automobile in a northerly direction alongside said street car and recklessly, carelessly, and negligently, suddenly and unexpectedly stopped said automobile in the middle of said block and in such position and location that there was not sufficient clearance between the rear step of said street car and the left fender, left running board and left end of bumper, and by reason of such negligence on the part of the plaintiff in so stopping said automobile, the rear step of said street car scraped upon, along and against the left fender, left running board and left end of bumper of said automobile, but the force of said impact was not sufficient to move said automobile or to in any way or wise injure or damage the plaintiff."

Verdict and judgment were had in favor of plaintiff in the sum of $18,002.77. Defendant appeals.

The defendant company asserts that the judgment rendered in this case should be set aside for the reason that it is based on a quotient verdict. In support of this contention is the affidavit of one of the attorneys for the defendant that he found in the jury room a sheet of paper showing the following calculation as made by the jurors in arriving at the verdict.

18002.77

______________

30 000 12 : 192033.25

10 000 12

""

30 000 72

30 000 72

""

30 000 033

30 000 24

___

2 000 92

30 000 84

""

33.25 85

__________ 84

192 033.25

Defendant asserts that a portion of the above figures are in the handwriting of Ethel J. Grubb, forewoman of the jury, and the remainder in that of Rollin B. Dayton, who was also a member of the jury. The affiant also states that the calculation of the verdict is in error in that the quotient should be $16,002.77 instead of $18,002.77.

There is also an affidavit signed by each of the twelve jurors that "in arriving at said verdict nine jurors agreed that each would name a sum which he or she would be willing to return as a verdict, and that said sums should then be added together and divided by twelve, and that the resulting quotient should be the verdict of the jury." The affidavit of the jurors also sets forth the calculation as above shown. After the making of this affidavit, which was subscribed and sworn to on the 11th day of June, 1929, Ethel J. Grubb made another affidavit on the 18th day of July in which she avers "There was no binding agreement or any agreement on the part of the jurors to accept the result of the addition of the figures referred to and their division by 12, as a verdict, and to my knowledge no one so understood it."

On the following day she made a third affidavit in which she stated that the second one was made through inadvertence and mistake and that her first affidavit, wherein the facts averred show a quotient verdict, was correct.

It is the well-settled rule in this jurisdiction that affidavits of jurors will not be received to impeach their verdict Forrest v. Turlay, 125 Or. 251, 266 P. 229; Stafford v. Tonkin, 124 Or. 534, 264 P. 863; Wells v. Clark & Wilson Lumber Co., 114 Or. 297, 235 P. 283; Shepherd v. Inman-Poulsen Lumber Co., 86 Or. 652, 168 P. 601; Spain v. O.-W. R. & N. Co., 78 Or. 355, 153 P. 470, Ann. Cas. 1917E, 1104. It is equally well established that a quotient verdict is illegal and constitutes misconduct on the part of jurors, for which a new trial may be granted. The mere fact in itself, however, that nine jurors caused to be written on the slip of paper amounts expressing their respective views in the assessment of damages, and that the quotient was obtained by dividing the total by twelve does not invalidate the verdict unless there was a prior agreement that such unascertained quotient would be accepted as the verdict of the jury. There is no presumption that the jurors engaged in such an illegal proceeding in arriving at their verdict. It is incumbent upon the person who attacks the verdict to establish that the jurors did have an agreement beforehand that they would abide...