Kitchel v. Gallagher

• Decision Date: 25 September 1928
• Citation: 126 Or. 373,270 P. 488
• Parties: KITCHEL v. GALLAGHER.
• Court: Oregon Supreme Court

270 P. 488

126 Or. 373

KITCHEL v. GALLAGHER.

Supreme Court of Oregon

September 25, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; James U. Campbell Judge.

Action by Howard Kitchel, a minor, by C. W. Kitchel, his guardian ad litem, against Harry Gallagher. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an appeal from a judgment for the sum of $1,500 in favor of plaintiff and against defendant. The judgment is based upon a verdict of a jury. Plaintiff was injured in a collision between a horse he was riding and a truck belonging to defendant Harry Gallagher. The action was dismissed as to the other defendant because he had no interest in the truck. Plaintiff was riding along a county road, known as the Lasen road, about 8 o'clock, September 20, 1923. A truck belonging to said defendant Harry Gallagher was at that time traveling the Mt. Hood Loop highway in a northerly direction and turned from said highway into said Lasen road, meeting plaintiff some 20 or 30 feet from the intersection of said two roads on a fill. The graveled portion of the fill was 14 feet in width, too narrow for two such vehicles as said truck to pass each other thereon. Plaintiff alleges that said defendant's truck was traveling on the left and wrong side of the road and so near the left border thereof that his horse was crowded from the surface, slipped on the sloping side, and in regaining his balance hurled plaintiff with great force against the rear part of said truck, breaking his leg, and otherwise seriously injuring him. Plaintiff alleges five separate grounds of negligence, to wit: Defendant failed to have his truck under proper control; second, defendant failed to keep a proper lookout for travelers using said road, and particularly for the plaintiff; third, that said defendant failed to pass to and beyond the center of said intersection of the two roads when turning into the Lasen road; cut the corner, and drove to the extreme left-hand side of the intersection in making the turn, and at said time and place struck the plaintiff; fourth, defendant failed to keep said truck on the right half of the Lasen road; fifth, that said defendant operated his truck without proper lights. The last-named alleged negligence was taken from the jury by the judge presiding at the trial because there was no evidence thereof. Plaintiff sued for the sum of $20,000 general damages and $150 special damages. Said defendant appeals assigning 25 alleged errors. Six of said assignments are based on the court's ruling in refusing to admit certain proffered testimony. The sixth assignment is the court's order denying defendant's motion for a nonsuit; seventh assignment is based on the court's refusal to strike from the record a certain question. The eighth assignment is based on the court's order refusing to reprimand counsel for asking that question. The ninth assignment is based on the refusal of the court to instruct the jury to disregard said question. The twelfth assignment is the court's denial of defendant's motion for a directed verdict. The tenth and thirteenth assignments are based on the court's refusal to instruct the jury to disregard certain remarks by counsel for plaintiff. Four assignments are based on alleged erroneous instructions to the jury. Six assignments are based on the court's refusal to give instructions requested by defendant; and the last assignment is based on the court's order denying defendant's motion for a new trial. These various assignments will be considered in the opinion. They are too prolix to be set out in detail.

Robert F. Maguire, of Portland (Winter & Maguire, of Portland, on the brief), for appellant.

Paul R Harris, of Portland (J. B. Pfouts, of Junction City, and W. M. Davis and Paul R. Harris, both of Portland, on the brief), for respondent.

COSHOW J. (after stating the facts as above).

We have very carefully examined all the assignments of error as to the ruling of the court on the admission of evidence and the motions to strike certain evidence. We think that there was no error in the court's ruling. The only ruling on the matter that admits of doubt was the court's ruling upon the testimony sought to be adduced from plaintiff on cross-examination. The court seemed to entertain the opinion that plaintiff could not be questioned regarding his oral statements because a statement had been made by plaintiff and reduced to writing by an investigator for an insurance company. Counsel for defendant stated that he was propounding the questions for the purpose of impeachment. We think for that purpose defendant was entitled to have questions answered touching other statements made by plaintiff. But defendant did not lay a proper foundation for impeachment. Statements made by a party may be proved by other witnesses when such statements are against the party's interest, but, if a party is sought to be impeached, then proper foundation must be layed for the impeaching questions. This was not done in this case. For that reason defendant was not entitled to have the alleged impeaching questions answered.

The court properly ruled upon the motion for an involuntary nonsuit. There was evidence tending to prove some of the alleged acts of negligence on the part of defendant Harry Gallagher. He was not personally driving the truck, but his employee was, and defendant Harry Gallagher, as owner of the truck, was responsible for his agent's conduct while in the performance of his duty. The able counsel for defendant argue very earnestly that there was no evidence of any act of negligence on the part of said defendant. There was testimony that the said defendant cut the corner and proceeded along the Lasen road on the left-hand side of the road; that plaintiff and his horse being blinded by the lights from the automobile endeavored to avoid a collision by going to the extreme right, and in doing so plaintiff's horse stepped so near the edge of the improved part of said road that his foot slipped over the border and down the slope; that the horse in recovering his balance and footing lunged against the rear of the truck, causing the injuries suffered by plaintiff. This constituted sufficient evidence to carry the case to the jury. In this connection defendant further insists that the allegation in the complaint was that the collision occurred in the intersection of the Lasen road with the Mt. Hood Loop highway. The complaint will bear that construction. Testimony, however, of the exact place of the accident was admitted without objection, and the collision occurred so near the intersection that plaintiff is now entitled to the benefit of his testimony in that regard. The allegation regarding the place of the collision, after referring to the intersection aforesaid, is as follows: "* * * At said time and place struck the plaintiff." "At" means by or near, and the collision actually occurred in comparatively few feet from the intersection. Although traveling at the rate of 10 miles an hour, the collision occurred within less than two seconds after passing through the intersection. The jury could rightfully infer from the testimony given that cutting the corner and proceeding on the left-hand side of the road was the immediate cause of plaintiff's horse stumbling, resulting in the injuries to plaintiff. We do not consider important the...