Mansfield v. Southern Oregon Stages

• Decision Date: 30 June 1931
• Parties: MANSFIELD v. SOUTHERN OREGON STAGES.
• Court: Oregon Supreme Court

1 P.2d 591

136 Or. 669

MANSFIELD v. SOUTHERN OREGON STAGES.

Supreme Court of Oregon

June 30, 1931

Department 1.

Appeal from Circuit Court, Jackson County; H. D. Norton, Judge.

Action by A. J. Mansfield against the Southern Oregon Stages, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

This is an action for damages on account of personal injuries resulting in a verdict and judgment in the sum of $3,443 in favor of plaintiff. Defendant appeals.

The accident occurred on March 9, 1929, on that part of the Ashland-Klamath Falls highway known as the Green Springs mountain road. The plaintiff and his partner, Robert Longden were on their way from Klamath Falls to Medford. At the time of the accident they were on the mountain side going down grade. Longden was driving the automobile, a Star, which had been borrowed for the trip by Mansfield. The defendant's stage, on its regular trip between Klamath Falls and Ashland was following the Star automobile. The stage undertook to pass to the left of the Star when the accident occurred. The plaintiff claimed that the stage turned to the right and struck the Star on the left hind wheel, spinning and turning it about on the highway with the rear end of the Star about eight feet from the edge of the precipice on the left of the highway and going west toward Ashland, where the Star stopped crosswise on the highway, slightly angling up grade or toward the east, the motor having stopped, when the stage again struck the Star, sending it over the grade with plaintiff and Robert Longden therein, injuring plaintiff. Defendant claimed that the Star car turned to the left and struck the stage.

ROSSMAN J., dissenting.

Alva W. Person, Jr., of Portland (Allan A. Bynon, of Portland, on the brief), for appellant.

John Irwin, of Klamath Falls (Oneill & Irwin, of Klamath Falls, on the brief), for respondent.

BEAN C.J. (after stating the facts as above).

The errors assigned on this appeal are based on the denial of defendant's request to withdraw from the jury certain allegations of negligence contained in the complaint; the admission of certain testimony respecting measurements made at the scene of the accident by the surveyor; and the admission in evidence of a map of the scene of the accident.

The first assignment of error is predicated upon the refusal of the court to give to the jury the defendant's requested instruction to the effect that there is no allegation in the amended complaint that the condition of the brakes on defendant's motorbus was the proximate cause of or in any way brought about the accident. Turning to paragraph IV of the complaint we find it alleged that the brakes upon the stage were defective and insufficient to hold the stage upon the grade, or to control the motion or to slacken the speed of the stage to prevent collision, and incapable of bringing it to a stop in descending the grade. The complaint then further alleges that the horn and warning devices upon the stage were in a defective condition and could not be used; that without any warning by horn or otherwise, and the plaintiff being unaware that the stage was following the Star down the grade, the stage, then being operated by a servant and agent of defendant, "in an attempt to rush ahead and pass said motor car did wantonly and wilfully with the grossest negligence and carelessness run said stage at a high and excessive speed against said motor car with great, force and causing said motor car to be thrown forward and veered around with the rear end of said motor car eight feet from the edge of said precipice and to a complete stop with the motor therein not running; and that immediately thereafter and while said motor car was standing still with the motor therein not in motion, as aforesaid, that the said servant and agent of the defendant driving and in control of said stage at a high and excessive rate of speed did, in a grossly negligent, wanton and wilful manner run said stage a second time against said motor car and knocked said motor car with this plaintiff in it off of said highway and over the edge and verge of said precipice throwing said car 318 feet below said highway and hurling the plaintiff over 100 feet below the edge of said highway at the aforesaid point and place at said precipice."

After detailing plaintiff's injuries caused thereby, the complaint further alleged that by reason of the willful and wanton acts and doings, together with the gross negligence and carelessness of the defendant, as aforesaid, the plaintiff seeks damages.

In regard to the matter of brakes, the court instructed the jury, in substance, that this matter could not be considered unless they found there was a defect in the brakes, and that such defect, if any, either alone or in conjunction with some other act of negligence on the part of defendant, constituted one proximate cause of the collision and resulting injuries.

The language of the complaint is somewhat involved, and a construction thereof is not free from difficulty, but it appears that the brakes were alleged to be defective, and further alleged that by reason of the acts of the defendant the plaintiff claimed damages. There was no motion to make more definite and certain, or a demurrer directed to the complaint. We think that, after a verdict, the allegations in regard to the brakes should be construed as alleging negligence upon the part of defendant. Defendant, in this connection, also contends that there is no testimony to show that the brakes contributed to the accident.

It is a well-settled rule that, where the testimony in regard to an issue is conflicting, or where reasonable men may draw different conclusions from the testimony, the matter should be submitted to a jury. The circumstances in regard to the accident were all detailed on the part of the plaintiff. The testimony tended to show that the first impact of the stage with the Star car sent the car a distance of about twenty-five feet, and after that the stage struck the car again sending it over the precipice. It might well be thought by the jury from these circumstances that, had the brakes been in proper condition, the driver of the stage would have stopped the same before it struck the car the second time. The plaintiff rode in the stage immediately after the accident and testified to the effect that the brakes were in a defective condition. We find no error in this respect.

The defendant also requested the court, in its charge to the jury, to withdraw from their consideration the charges in the complaint to the effect that the horn and warning devices upon the motorbus were in a defective condition and to disregard these charges and any evidence which may have been received relating to them. This question is closely akin to the one which we have just mentioned. The testimony tended to show that there was no horn or signal device on the bus, and of course that prevented the driver from sounding any warning with such horn or device, and when he approached the Star car, as the testimony indicated, there was no warning or signal given. These circumstances might have suggested to the jury that, had there been a horn or other signal device upon the bus and the same had been sounded, warning the driver of the Star car, he would, as the law directs, have driven the Star car to the right and out of the way of the stage and the accident would not have happened. Sometimes acts and circumstances speak louder than words. We think this was a question for the jury to consider, and that there was no error in the court submitting the question to that body. As we understand the contention of the defendant, it is based wholly upon the fact that the want of a signal device was not indicated by the testimony to be the proximate cause, or to contribute to the accident.

Error is predicated upon the ruling of the court, over the objection of defendant, admitting testimony showing the distance from the place where the plaintiff claimed that the car was first struck and to where a person coming around the corner, or curve, west and ahead of the stage and car, could first be seen, which the witness stated was 410 feet, and also testimony as to the distance between the point where the car was first struck and the point of the second impact. The map of the highway and the surrounding area was drawn by a civil engineer, Mr. E. B. Henry. The plaintiff pointed out to him the place where the accident happened and also pointed out to him the wreck of the Star car down over the precipice, which still remained there, and the engineer drew a map of the highway, which is in evidence, taking as a basis a portion of the state highway commission map. Robert Longden was unconscious after the accident and did not remember the incident. The objection to the testimony seems to be that the engineer had no personal knowledge that the place on the highway, shown on the map, was the point where the accident occurred. The engineer did not pretend to know where it happened and did not so indicate by his testimony, but simply delineated the places upon the map that were pointed out to him by plaintiff, who apparently did know where the accident occurred and the points where the Star car was struck by the bus. Practically in this manner only could a map be drawn by an engineer unless he was present at the time or soon after the accident.

The defendant contends that the introduction of the map was hearsay. We find in the testimony of the defendant that its learned counsel introduced a map of the highway which was pointed out to him by the driver of the stage as the place where the accident occurred. This is practically the only way, in most cases, that a map of such a locality could be drawn by an...