Odrlin v. Dugan

• Decision Date: 21 July 1931
• Citation: 137 Or. 140,1 P.2d 599
• Parties: ODRLIN v. DUGAN.
• Court: Oregon Supreme Court

1 P.2d 599

137 Or. 140

ODRLIN v. DUGAN.

Supreme Court of Oregon

July 21, 1931

In Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Robert Odrlin against James R. Dugan, doing business as Dugan's Dollars Transportation. Judgment for plaintiff and defendant appeals.

Affirmed.

At about 2 o'clock in the morning of September 3, 1928, in the city of Portland, plaintiff was riding in a taxicab belonging to defendant as a passenger for hire. While going north on Sixteen street as the taxicab approached Everett street, defendant collided with another automobile. Plaintiff was rendered unconscious for a few minutes and sustained a cut on his left leg, a strained back, and bruises upon the left eye and elsewhere about the face and head.

This action was instituted to recover damages for such injuries. It is based upon the alleged negligence of the operator of defendant's taxicab. A trial was had resulting in a verdict and judgment in favor of plaintiff in the sum of $3,000. Defendant appeals.

Morris & Kimmell, of Portland, for appellant.

Davis &amp Harris, of Portland, for respondent.

KELLY, J. (after stating the facts as above).

Defendant seeks a reversal of the judgment of the circuit court because of alleged erroneous and conflicting instructions to the jury, and because of the alleged error of the circuit court in overruling defendant's motion to set aside the judgment and verdict and grant a new trial on the grounds that the testimony was not sufficient to support the verdict and that the verdict was excessive.

It is claimed that the court erred in instructing the jury that it might assess damages for pain and suffering, that the plaintiff might endure in the future. "It is well settled that in personal injury cases the plaintiff may recover, not only for the pain and suffering already experienced, but, also, for what of suffering the preponderance of the testimony establishes will accrue from the injury in the future." The rule is that, in order to warrant the trial court in submitting the question of alleged future suffering to the jury, at least a probability of such element of damage must be shown to exist. It is not enough to disclose a mere possibility of future suffering. Rugenstein v. Ottenheimer, 70 Or. 600 140 P. 747.

The plaintiff testified as follows:

"Q. Well, if you know, tell the jury without my leading you what injuries you received and how it affected you? A. A cut on my left leg; my shin was all skinned off; and my back is strained and I don't feel good since. ***

"Q. Would you mind telling the jury about how long it was before you could do any more work? A. It was a long time; I am not hardly able to do any work since then.

"Q. Tell the jury how it affects you, if you attempt to do anything how do you feel? A. Every time, it is my back-It seems like I can do it, and when I start to do it, it seems I can't do it.

"Q. How old are you? A. Thirty-six.

"Q. Did you ever have any trouble with your back before this accident? A. No."

When it is borne in mind that the accident occurred on September 3, 1928, and that the plaintiff was testifying as above outlined on March 26, 1930, or more than a year and a half later, it must be conceded that this testimony establishes a probability that for sometime in the future plaintiff will suffer pain.

Defendant's second assignment of error urges that the instruction to the effect that, in assessing damages, the jury might take into consideration pain and suffering which they found plaintiff would endure and suffer in the future, is inconsistent with the instruction that the jury should not base their verdict upon the theory that the injury or injuries were permanent. There is no inconsistency in these instructions....