Hopfer v. Staudt

• Decision Date: 31 May 1956
• Citation: 298 P.2d 186,207 Or. 487
• Parties: Joseph A. HOPFER, Respondent and Cross-Appellant, v. E. T. STAUDT, Cross-Respondent, and Los Angeles-Seattle Motor Express, Inc., a corporation, Appellant.
• Court: Oregon Supreme Court

Page 186

298 P.2d 186

207 Or. 487

Joseph A. HOPFER, Respondent and Cross-Appellant, v. E. T. STAUDT, Cross-Respondent, and Los Angeles-Seattle Motor Express, Inc., a corporation, Appellant.

Supreme Court of Oregon.

Argued and Submitted March 21, 1956.

Decided May 31, 1956.

Charles S. Crookham, Portland, for appellant. On the brief were Vergeer & Samuels, Duane Vergeer and Charles S. Crookham, Portland.

Paul F. Burris, Salem, for respondent and cross-appellant. On the brief was Allan G. Carson, Salem.

John Gordon Gearin, Portland, for cross-respondent. With him on the brief were Koerner, Young, McColloch & Dezendorf, John Gordon Gearin, Oglesby H. Young, James H. Clarke, Portland.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and PERRY, JJ.

BRAND, Justice.

The plaintiff Hopfer brought this action for damages arising out of an automobile collision. The defendants were E. T. Staudt and Los Angeles-Seattle Motor Express, Inc., a corporation, hereafter called LASME. There was a verdict for plaintiff and against both defendants, for $20,000, and judgment was entered thereon. Thereafter the defendant E. T. Staudt, acting for himself alone, moved for judgment notwithstanding the verdict. The court allowed the motion and entered judgment for costs in favor of the defendant E. T. Staudt and against plaintiff. LASME appeals from the judgment against it, and the plaintiff Hopfer appeals from the judgment n.o.v. The collision occurred within the city of Woodburn on Highway 99 which, at that point, consists of four lanes, two northbound and two southbound, separated by a double yellow line along the center of the highway. Highway 99 is intersected by Blaine street. It extends, in general, from the southwest to the northeast, so that a car northbound on Highway 99 and turning to the left into Blaine street would have to make somewhat more than a ninety-degree turn. The accident occurred at about 4 o'clock a. m. The plaintiff was driving in a northerly direction on Highway 99 and was intending to turn to the left into Blaine street. The truck which collided with plaintiff's car was also northbound on Highway 99. The collision occurred within the intersection. The complaint alleges that the truck was being driven 'to the rear of the automobile being operated by plaintiff,' and that 'as plaintiff operated his automobile westerly in said intersection and was crossing the dividing line between the southbound lanes of said Highway in said intersection,' the defendants negligently drove the truck onto the west side of the highway and collided with the left side of plaintiff's automobile. The plaintiff contended that he was driving along the northerly lane nearest to the center line of the highway. The testimony in behalf of the defendant LASME was to the effect that the plaintiff was driving in the extreme east traffic lane and that the defendant was following the plaintiff but was in the inside north-bound traffic lane. Defendant alleged that the plaintiff suddenly and without warning turned from the extreme east traffic lane to the left, directly in front of the truck.

The foregoing statement is sufficient for an understanding of the first assignment of error presented by LASME. By that assignment it is urged that the trial court erred in denying the following motion to strike certain testimony given by the plaintiff. The motion was as follows:

'Mr. Gearin: At this time, if the Court please, defendant Staudt for himself alone respectively moves the Court for an order striking from the testimony the testimony of the plaintiff with respect to how the accident happened. In that respect I call Your Honor's attention to the following testimony of Mr. Hopfer; he testified on cross examination that he was approximately 25 to 30 feet south of the intersection when he started to turn. At that time he was proceeding at a speed of 20 miles an hour. At that time, he saw the truck behind him which was then a distance of 200 or 300 feet behind him to the south. He traveled from the point where he started to make a turn, which was 25 or 30 feet from the intersection, a distance of 25 or 30 feet further from that point until the time of impact, and at the time he started to turn, the truck was 200 feet or further behind him. Therefore while he was proceeding a distance of 25 or 30 feet at 20 miles an hour, the truck had to travel between 200 and 300 feet, in excess of 200 feet, to the point of impact; he had to go ten times as fast, or in excess of 200 miles per hour.'

The motion to strike was made by counsel for the defendant E. T. Staudt but was adopted by counsel for LASME.

In support of his assignment of error the defendant relies upon the so-called incontrovertible physical facts rule. It is argued that the plaintiff traveled 30 feet at 20 miles per hour and that in the same period of time, according to his own testimony, the truck traveled approximately 200 to 300 feet and therefore must have been traveling at approximately 200 miles per hour. Since it is impossible that the truck was traveling at any such speed, the defendant LASME contends that plaintiff's testimony should have been stricken as contrary to incontrovertible physical facts. The plaintiff's testimony concerning his own speed was based solely upon an estimate. His testimony concerning the distance between his car and the truck could have been no more than an estimate. In view of these facts our decision is controlled by the case of Van Zandt v. Goodman, 181 Or. 80, 179 P.2d 724. In that case we recognized that a verdict cannot be based on evidence which is opposed to established physical facts, but we held that

'The 'physical facts rule' cannot come into play with respect to the position, speed, etc., of movable objects, if facts relative to speed, position, etc., must be established by oral evidence or where it is necessary to make estimates or measurements or to start with an assumption of existence of a fact.' Headnote 8.

'Trial court was not required to reject testimony of driver of automobile in which plaintiff was riding concerning position of defendant's automobile under the so-called 'incontrovertible physical facts rule' because of later statements by such witness, which, by hypothesis, were absurd.' Headnote 9.

The evidence indicates that the plainiff's testimony as to the distance between the two cars must have been more like a guess than an estimate. It was based on observation in a rear view mirror which had some discoloration, and plaintiff testified that at night 'it was hard to judge but it looked like they were at least a block behind me. * * *' Again, plaintiff testified as follows:

'Q. At the time you started to angle over when you were twenty-five or thirty feet from the intersection, can you give me any idea how far the truck was behind you at that particular time? A. Well, no; I was watching so I wouldn't miss the intersection. In that instant I was looking forward again.'

Defendant LASME cites Cameron v. Goree, 182 Or. 581, 189 P.2d 596. In that case the question at issue was the sufficiency of the evidence when challenged by a motion for nonsuit. That decision is not in point here. The motion made in the pending case was to strike 'the testimony of the plaintiff with respect to how the accident happened', most of which was both revelant and admissible. Neither Cameron v. Goree nor Oregon Motor Stages v. Portland Traction Co., 198 Or. 16, 255 P.2d 558, cited by LASME purport to weaken the authority of Van Zandt v. Goodman which controls here.

By its second assignment of error the defendant LASME complains of the refusal of the trial court to give a requested instruction which reads in part as follows:

'* * * Therefore, when physical facts of the case appear in evidence and are undisputed, or where you are firmly convinced of the truth of evidence as to physical facts, these physical facts may be entitled to greater weight than the verbal testimony of the witnesses. If the testimony of any witness is clearly contrary to the undisputed physical facts of the case, you should disregard that testimony and rely upon the physical facts.'

The request was properly refused. The fact that a truck and trailer cannot go 200 miles per hour may be undisputed, but the distance between the two cars was directly in dispute and consequently the inference as to the speed at which the truck was going when it covered the distance was also in dispute.

Defendant LASME assigns error in that the court failed to allow the motion to amend its answer. After both sides had introduced their evidence, the record shows that plaintiff rested. Thereafter the court inquired of counsel if they had any further testimony, to which counsel for both defendants answered in the negative. There was no motion to reopen the case. But the defendant LASME asked leave to amend its answer by adding an additional specification of negligence to read as follows:

'* * * In making a left turn, or in attempting to make a left turn from Highway 99-E without first passing to the right of the center line of the intersection at which the plaintiff attempted to make such turn. * * *'

In the first place the proposed amendment is ambiguous. We do not know what is meant by 'the center line of the intersection.' There was ample opportunity for the defendant to have offered his proposed amendment before both parties had rested. Secondly, the proposed amendment is inconsistent with the allegations of the affirmative defense upon which the case was tried and which charged that plaintiff's negligence was in 'attempting to make a left turn from the righthand northbound lane instead of from the lefthand northbound lane.' In view of the stage of the case at which the motion was made, the decision was clearly within the discretion of the trial judge. We find no evidence of abuse of that discretion. Bennett v. City of Portland, 124 Or. 691, 265 P. 433; Schamoni v. Semler, 147 Or. 353, ...