McVay v. Byars

• Decision Date: 02 June 1943
• Citation: 171 Or. 449,138 P.2d 210
• Parties: McVAY v. BYARS
• Court: Oregon Supreme Court

171 Or. 449

138 P.2d 210

McVAY v. BYARS

Supreme Court of Oregon.

Argued April 14, 1943.

Affirmed June 2, 1943.

Evidence

1. Where two automobiles collided and plaintiff charged defendant with negligent operation of defendant's automobile, while defendant countercharged that accident was result of negligent operation of the automobile in which plaintiff was riding, the presumption of due care applied equally to both drivers so that the presumptions balanced and canceled each other.

Automobiles

2. Instruction that there was presumption that defendant's automobile was being operated with due care was properly refused although plaintiff did not request similar instruction where presumption of due care applied equally to both drivers so as to cancel presumption.

Automobiles

3. In action involving automobile collision, refusal of defendant's instruction that negligence was never presumed from the mere happening of an accident was not an abuse of discretion where trial court duly defined negligence and instructed upon the burden of proof.

Trial

4. In action involving automobile collision, defendant's instruction that only evidence producing "moral certainty" that defendant was negligent in one of the respects charged in complaint and that such negligence was the proximate cause of plaintiff's injuries was sufficient to justify a verdict for plaintiff was properly refused, since the instruction is cautionary only and the Legislature has not commanded that the "moral certainty" rule be given to jury.

Trial

5. Refusal of instruction that the conduct of defendant motorist was not to be judged by subsequent events was harmless error in view of instruction defining negligence.

Appeal and error

6. In action involving automobile collision, refusal of instruction that verdict of jury must not be based upon speculation or guilt but upon the evidence was harmless error where instruction was cautionary.

Trial

7. Cautionary instructions may be given or not in the discretion of the court.

Automobiles

8. Where automobiles just prior to collision approached each other from the opposite directions although defendant may have been entitled to right of way at intersection whether driver of plaintiff's automobile intended to turn left within intersection or did not intend to turn to left but was proceeding along a left curve, factual situation as to right of way was for jury.

Automobiles

9. Instruction that if automobile collision was "unavoidable accident" so far as defendant was concerned, verdict should be for defendant, was properly refused where instruction might have confused jury.

Trial

10. Instruction that if defendant were confronted with an emergency not created by any negligence on his part, and erred in judgment in attempting to avoid automobile collision, he would not be negligent, was properly refused where evidence showed that if emergency of plaintiff's automobile appearing suddenly, coming directly toward defendant existed, defendant was not without fault in bringing it about, and instruction omitted to state that the judgment which defendant was required to exercise was that which would be exercised under similar circumstances by a reasonably prudent person.

Trial

11. Instruction that there was no evidence that defendant's automobile was being driven at speed in excess of 45 miles an hour was properly refused in view of pleadings and evidence.

Automobiles

12. The character of injuries sustained by occupants of automobiles involved in a collision may be some evidence to prove the speed at which defendant's automobile was being driven.

Trial

13. In action involving automobile collision, refusal to give instruction that there was no evidence of negligence to support charge that defendant's automobile was equipped with insufficient brakes was error but not reversible where jury was not misled, testimony was brief, and jury could easily remember all of testimony.

Damages

14. $1,800 for injuries sustained in an automobile collision was not excessive.

                  See 5 Am. Jur. 838
                  31 C.J.S., Evidence, § 119
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Marion County.

L.H. McMAHAN, Judge.

Action by Thomas McVay against W.F. Byars for personal injuries sustained in automobile collision. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Randall B. Kester, of Portland, (Maguire, Shields, Morrison & Biggs, all of Portland, on the brief) for appellant.

Ralph W. Skopil and Wallace P. Carson, both of Salem, for respondent.

HAY, J.

This was an action for damages for personal injuries which were sustained by plaintiff in a collision between two automobiles. The collision took place at a point where certain highways intersect. One of these is the road from Turner to Salem, which at the place of the accident proceeds from the south upon a left-hand curve toward the west. This is the more heavily traveled of the roads involved in this affair. It proceeds around the curve upon an ascending grade from the south, and the curved portion is "banked" or "dished" toward the uphill side. At a point where this road curves rather sharply toward the west, it is intersected by two other roads. One of these is called Highway 27, which, coming from the north, intersects the Turner-Salem road, approaching the intersection on a down-hill grade. The other is a road which enters the same intersection from the east. It is unimportant so far as this case is concerned. Both the Turner-Salem road and Highway 27 are paved. The latter intersects the former on a line tangent to the curve, but the curve commences south of the intersection. None of the roads mentioned has any traffic control or warning sign upon it.

Plaintiff was a passenger in a Nash automobile operated by one Mills, which was traveling northerly upon the Turner-Salem road, and approached the intersection from the south. Defendant, at the same time, was driving a Ford automobile south upon Highway 27, and approached the intersection from the north. Plaintiff's driver intended to continue upon the Turner-Salem road, through the intersection, that is to say, to continue westerly around the curve of that road, and hence to Salem, while defendant intended to drive through the intersection south along the Turner-Salem road toward Turner. The two cars collided within the intersection.

Plaintiff charges defendant with negligence, (1) in driving carelessly, in disregard of the rights and safety of others, particularly plaintiff, without due caution and circumspection, and at a speed and in a manner likely to endanger other persons, particularly plaintiff, "in that" he drove into the Salem-Turner highway without first seeing that it could be done with safety; (2) "in that" he drove at a speed in excess of 45 miles an hour; (3) "in that" he failed to keep a proper lookout for traffic on said highway; (4) "in that" he failed to keep his automobile under proper control; and (5) "in that" he operated his car without adequate brakes.

Defendant admits the collision, but denies negligence on his part. Affirmatively, he charges that the negligence of plaintiff's driver proximately caused the collision, such alleged negligence being specified as (1), excessive speed; (2), failure to keep his car under control; (3), failure to give defendant the right of way; (4), failure to keep a proper lookout; and (5), in approaching the intersection on the left side of the highway. He charges further that plaintiff and Mills, his driver, were engaged in a joint venture, and that the driver's negligence is imputed to plaintiff. On the trial, defendant's counsel withdrew the allegation of joint venture.

Trial by jury resulted in a verdict for plaintiff in the sum of $1800, and defendant appeals.

Defendant requested the following instruction:

"Negligence is never presumed from the mere happening of an accident. The law presumes, on the contrary, that at the time and place of the accident the defendant's automobile was being operated with due care and caution and in compliance with the rules of the road. This presumption is in itself evidence in the defendant's favor, and unless it is overcome by other evidence your verdict should be for the defendant."

1, 2. While plaintiff charged defendant with negligent operation of his car, defendant countercharged that the accident was the result of the negligent operation of the car in which plaintiff was riding. The presumption of due care applies equally to both drivers. Hence, the presumptions balance and cancel each other. 31 C.J.S., Evidence, section 119. While it is true that plaintiff did not request an instruction in his favor in this respect, nevertheless we believe that the court, if he instructed upon this point at all, should have instructed that the presumption of due care applied equally to both drivers, and so set the matter at large to be determined by the onus of proof and the preponderance of the evidence.

3. As for that portion of the requested instruction which stated that negligence is never presumed from the mere happening of an accident, it is to be observed that the court duly defined negligence and instructed upon the burden of proof. The giving of cautionary instructions such as this was discretionary with the court, and refusal to give them is not error.

Under the circumstances, we are not prepared to say that the failure to charge as requested was reversible error.

4. Another instruction requested by defendant reads:

"In order for plaintiff to prevail in this case it is necessary that you should find by a preponderance of satisfactory evidence that the defendant was negligent in one of the respects charged in plaintiff's complaint and that such negligence was a proximate cause of the injuries to plaintiff. You are instructed that in determining whether plaintiff has sustained this burden, that evidence is deemed satisfactory only if it...