Oien v. Bourassa

• Decision Date: 20 April 1960
• Citation: 351 P.2d 703,221 Or. 359
• Parties: Louise OIEN, Appellant, v. Donald A. BOURASSA, Respondent.
• Court: Oregon Supreme Court

Page 703

351 P.2d 703

221 Or. 359

Louise OIEN, Appellant, v. Donald A. BOURASSA, Respondent.

Supreme Court of Oregon, Department 1.

Argued April 6, 1960.

Decided April 20, 1960.

Gordon G. Carlson, Roseburg, argued the cause for appellant. On the brief were Yates, Murphy & Carlson, Roseburg.

Donald A. Dole, Roseburg, argued the cause for respondent. On the brief were Long, Neuner & Dole and Eldon F. Caley, Roseburg.

Before McALLISTER, C. J., and ROSSMAN, GOODWIN and HARRIS, JJ.

HARRIS, Justice pro tem.

This is an action by plaintiff, Louise Oien, against the defendant, Donald A. Bourassa, for personal injury. Subsequent to verdict and judgment in favor of defendant, plaintiff moved for a new trial. Plaintiff appeals from the judgment and from an adverse ruling on the motion for a new trial.

On May 8, 1957, plaintiff was a passenger in an automobile owned and being operated by her husband (hereinafter referred to as plaintiff's car) in a southerly direction on highway 99 at a point approximately two miles south of the city of Winston, Oregon. Defendant was at said time and place operating an International logging truck and trailer loaded with logs, also in a southerly direction. Plaintiff claims that after her car was driven into the left lane of travel in order to overtake and pass the logging truck and as her car overtook and came opposite it, the defendant drove his truck over into the left lane and into the side of plaintiff's car. Plaintiff alleges defendant was guilty of negligence in five specifications. Defendant denies negligence on his part and alleges that when he attempted to turn left from the highway into the property of the Roseburg Lumber Company, plaintiff's car was driven in the left lane of travel in order to overtake and pass defendant's truck, and a collision occurred. Plaintiff alleges defendant was negligent in the following particulars:

'1. That at said time and place the defendant negligently and carelessly failed to keep a lookout for motor vehicles overtaking and passing his log truck and trailer and particularly the vehicle being operated by the plaintiff's husband.

'2. That at said time and place the defendant negligently and carelessly failed to keep his log truck and trailer under control.

'3. That at said time and place the defendant negligently and carelessly operated his said log truck and trailer at a speed which was greater than was reasonable or prudent considering the traffic, surface and width of the highway and other conditions then and there existing.

'4. That at said time and place the defendant negligently and carelessly turned his log truck and trailer from a direct line without first seeing that such movement could be made with safety.

'5. That at said time and place the defendant negligently and carelessly turned his log truck and trailer to the left across the center line of the highway into the northbound lane of said highway without giving a proper signal or any signal of his intention to make such movement.'

Plaintiff's assignments of error complain of instructions given by the court, the failure of the court to give certain requested instructions, and the court's overruling objections to the admissibility of certain evidence. Plaintiff also assigns as error the order overruling her motion for a new trial.

One of plaintiff's assignments of error is as follows:

'The court erred in giving the following instruction:

"Evidence is deemed to be satisfactory only if it produces moral certainty or conviction in an unprejudiced mind. Only such evidence as produces moral certainty or conviction is sufficient to justify a verdict. Any evidence less than this is insufficient.'

'Plaintiff excepted as follows:

"Plaintiff excepts to the definition of satisfactory evidence given by the court as being only that evidence which produces moral certainty."

In Cook v. Michael, 214 Or. 513, 330 P.2d 1026, decided after the trial of the instant cause, this court in a carefully considered opinion written by Mr. Justice O'Connell held it was erroneous to give, in a civil case, an instruction such as that challenged by this assignment of error. The court in Cook v. Michael, supra, 214 Or. at page 524, 330 P.2d at page 1031, stated:

'We are of the opinion that in a civil case an instruction which describes the proponent's onus of proof in terms of the definition set out in ORS 41.110 imposes too great a burden upon him. For this reason it would be error for the trial court to so instruct the jury. * * * We regard ORS 41.110 as a legislative attempt to define more specifically the term 'reasonable doubt' found in ORS 17.250 and therefore that ORS 41.110 must be confined to criminal cases.'

Where error is shown it is presumed to have worked injury to the party against whom it was committed, unless the contrary affirmatively appears from the record. In DeLashmitt v. Journal Pub. Co., 166 Or. 650, 661, 114 P.2d 1018, 1022, 135 A.L.R. 1175, this court, speaking through Mr. Justice Rossman, stated:

'When a requested instruction has been erroneously refused, prejudice is presumed. The party in whose favor the error was committed thereupon has the burden of overcoming the presumption by showing that the error did not in fact influence the verdict or that the record indicates that some other incident neutralized the error.'

Also see Fromme v. Lang & Co., 131 Or. 501, 505, 281 P. 120.

In Galer v. Weyerhaeuser Timber Co., 344 P.2d 544, 558, this court held an instruction similar to the one here under attack 'was erroneous and should not have been given.' However, the court stated:

'* * * At any rate, we are satisfied that the issues of fact were so few and so unimportant that the erroneous instruction did not mislead. We hold that the error was not prejudicial.'

Contrary to the Galer case, supra, the issues of fact in the present case were vigorously contested throughout the trial and were not 'unimportant.' We cannot hold the error involved in the giving of the challenged instruction was not prejudicial.

In a second assignment of error plaintiff claims that the court erred in failing to sustain plaintiff's objection to the admission in evidence of defendant's exhibit No. 1, which was a copy of a 'log report' made by a police officer who testified on behalf of plaintiff. The log report was used by the defendant for the purpose of impeaching the testimony of the police officer. The gist of plaintiff's objection was to the effect that the exhibit was not 'the best evidence, because his testimony and also his original notebook constitutes the best evidence.' Any document executed by a witness which contains statements which are contradictory to his prior testimony would be competent for impeachment, purposes, even though the witness had prepared other and more complete documents. Since plaintiff made no objection on the ground the document was a copy, this matter cannot be considered under this assignment of error, which is held to be without merit.

A third assignment of error reads as follows:

'The court erred in failing to give the following requested instruction:

"The Oregon Statutes require that a motor vehicle driver before turning from the highway, must give proper signal of his intention to turn if the operation of any other vehicle may be affected by the turn. The signal must be plainly visible to the drivers of all other vehicles which may be affected by the turn. The signal, when required, must be given either by means of the hand and arm, or by approved mechanical or electrical signal device. In this case there has been no evidence that defendant Donald Bourassa gave any signal by means of the hand and arm or by means of any mechanical signal device. Furthermore, there has been no evidence that the left-turn signals on the truck have been approved by the Motor Vehicle Department as required by law. Therefore, you are instructed that in this case no proper signal for a left turn was given by defendant Bourassa. Therefore, if you find that at the time and place of the accident a reasonably prudent driver in defendant Bourassa's position would have believed that the operation of the Oien car would be affected by a turn from the highway by the truck, then the defendant Bourassa was guilty of negligence as a matter of law and if you find that this negligence was one of the proximate causes of plaintiff's injuries, then your verdict shall be for the plaintiff."

It will be noted that the purport of this requested instruction is to advise the jury that as a matter of law the defendant failed to give any signal of his intention to turn to the left. In other words, the instruction advised the jury that there was no evidence that defendant gave any signal by means of the hand and arm or by means of any mechanical signal device and, furthermore, that there was no evidence that the left turn signals on the truck had been approved by the Motor Vehicle Department, as required by law. Under this instruction all the jury had to find in order to hold defendant guilty of negligence as a matter of law was that a reasonably prudent person in defendant's position would have believed the operation of ...