Marshall v. Olson
| Decision Date | 03 January 1922 |
| Citation | 202 P. 736,102 Or. 502 |
| Parties | MARSHALL v. OLSON. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; J.P. Kavanaugh, Judge.
Action by Frederickie Marshall against August Olson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
E.V. Littlefield, of Portland (Joseph, Haney & Littlefield, of Portland, on the brief), for appellant.
Thomas G. Ryan and Walter McGuirk, both of Portland (McGuirk & Schneider and E.E. Miller, all of Portland, on the brief) for respondent.
This is an action to recover damages which the plaintiff claims she suffered by reason of a collision between the defendant's automobile and one driven by the plaintiff's husband with whom she was riding, at the intersection of Wasco street and East Thirteenth street north, in the city of Portland. The complaint begins by pleading according to their legal effect certain ordinances of the city governing the movement of vehicles on its streets. The substance is that vehicles approaching an intersection of streets shall be so under control as to permit the vehicle on the right of the one approaching first to cross the intersecting street, and that motor vehicles shall not exceed a speed of 20 miles per hour. The plaintiff also charges that she and her husband, in his automobile, with him driving, were traveling west on the right-hand side of Wasco street at a rate of speed not to exceed 10 miles per hour; and that the defendant Olson was driving his automobile north on East Thirteenth street. She imputes negligence to him in that he was traveling at the rate of 25 miles per hour, did not have his automobile under control, and that he failed to keep a proper lookout to see whether or not the street intersection was clear so as to allow him to pass. In substance, the complaint is that the plaintiff's husband had the right of way and that by reason of the negligent acts and omissions of the defendant a collision ensued between the two cars at the intersection, whereby the one in which the plaintiff was riding was overturned and she sustained various injuries mentioned.
The answer contains a complete traverse of the complaint, except that the defendant admits he was driving an automobile at the time. The substance of the affirmative matter of the answer is that as the defendant approached the street intersection mentioned, traveling in a northerly direction, he was on the right-hand side of East Thirteenth street, complying with all the ordinances of the city relative to automobile traffic; that he slowed down his car, and as he arrived at the intersection, the car driven by the plaintiff and her husband had not reached there, so that his right of way was clear; that the plaintiff and her husband were traveling at an unlawful and excessive rate of speed, and as they approached the intersection, made no attempt to slacken but rather increased their speed, forcing the defendant to turn his car to the left in order to prevent a collision; and that on that account, and due entirely to the negligence of the plaintiff and her husband, the collision ensued, and not otherwise. The reply denies the new matter in the answer.
A jury trial resulted in a verdict in favor of the plaintiff in the sum of $3,258. The defendant appeals.
The defendant, having testified on direct examination about his approach to the intersection and having his car under control, driving at the rate of 18 miles an hour, said in substance that he noticed the car in which the plaintiff was riding, about 15 feet east of the intersection at the moment he got there; and that, observing that they did not slacken but on the contrary increased their speed, he saw that a collision was imminent, so that he turned sharply to the left into Wasco street to avoid them, and in doing so, owing to the increased speed of the other car, his own car struck it on the left hind wheel, causing it to turn over, he says on account of its own speed. On cross-examination of the defendant the following occurred, according to the bill of exceptions:
There was no testimony either by this witness or any other that a car could be stopped in 20.8 feet. The effect of the court's declining to sustain the motion to strike out the statement of counsel, "you can stop in 20.8 feet," was to leave that statement in the record going to the jury as a proved fact. At least, the conduct of counsel in making the statement received the tacit approval of the court. Considering the various and variable factors in the operation of an automobile, the accuracy of the statement may well be challenged. So much depends upon the weight of the car, the speed at which it was traveling, and the consequent momentum involved; the state of the roadbed, whether smooth or rough; the grade, whether level, ascending, or descending; the condition of the tires, whether new or worn; the adjustment of the brakes, the load, and the like--may well cast doubt upon the reliability of any estimate as applied to all cars. But whether or not the statement could be shown to be correct, there was no evidence of that, and it was consequently error to allow the counsel's volunteered statement to remain in the record as against a motion to strike it out. In the early case of Tenny v. Mulvaney, 8 Or. 513, it is said in the syllabus, supported by the text of the opinion:
"It is error sufficient to reverse a judgment to permit counsel to state, against objection, facts not in evidence and pertinent to the issue, or to assume, arguendo, such facts to be in the case when they are not."
In Huber v. Miller, 41 Or. 103, 115, 68 P. 400, 45 Cent.L.J. 429, the court, speaking by Mr. Justice Wolverton, commenting on the limits to be imposed on the arguments of counsel, said:
95 Mo.App. 640, 69 S.W. 609; Bennett v. McDonald, 59 Neb. 234, 80 N.W. 826; Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N.E. 860; State v. Boice, 114 La. 856, 38 So. 584.
Allowing the statement of counsel on the subject to stand as against the motion of the defendant to strike it from the record is clearly reversible error.
An effort was made to present the same question by this statement of defendant's counsel quoted in the bill of exceptions, made immediately after the close of argument of counsel of plaintiff before the jury:
"I would like to save an exception to the statement made by counsel in his argument to the jury to the effect that Mr. Olson could have stopped his car at 20.8 feet at the rate of speed at which he was going, on the theory that there was no testimony in the record on which that argument could be based."
The court answered in this language:
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Garland v. Wilcox
...prudent individual. Under such circumstances the result, if unforuntate, is attributed to an unavoidable accident. Marshall v. Olson, 102 Or. 502, 202 P. 736; Stabenau v. Atlantic Ave. R. Co., 155 N.Y. 511, 50 N.E. 277, 63 Am.St.Rep. 698; Solatinow v. Jersey City, H. & P. St. Ry. Co., 70 N.......
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Kuehl v. Hamilton
...with such a device. The jury were not instructed to disregard these utterances, nor were they advised to that effect as in Marshall v. Olson, 102 Or. 502, 202 P. 736. In colloquy between court and counsel, above quoted, the court said that they should not be considered as evidence. If this ......
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Barnum v. Williams
...statute is negligence per se. At the same time, however, we engrafted the principle of fault into this doctrine. Marshall v. Olson, 102 Or. 502, 511--513, 202 P. 736 (1922). In the Marshall case the jury could have found that the defendant turned in violation of a city ordinance. The court ......
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Traglio v. Harris, 9028.
...Oregon law, the negligence of a child cannot be imputed to the mother unless the mother exercised control over the child. Marshall v. Olson, 102 Or. 502, 202 P. 736; Macdonald v. O'Reilly, 45 Or. 589, 78 P. 753. Appellants' theory is that under the California law, the negligence of the chil......