Ordeman v. Watkins

• Decision Date: 26 May 1925
• Citation: 114 Or. 581,236 P. 483
• Parties: ORDEMAN v. WATKINS.
• Court: Oregon Supreme Court

236 P. 483

114 Or. 581

ORDEMAN v. WATKINS.

Supreme Court of Oregon

May 26, 1925

Department No. 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Caroline Ordeman against C. Earl Watkins. Judgment for defendant was set aside and new trial granted, and defendant appeals. Affirmed.

Earl C. Bronaugh, Jr., of Portland, for appellant.

Robert F. Maguire, of Portland, for respondent.

RAND J.

The plaintiff, a woman 59 years of age, while crossing East Thirty-Seventh street in the city of Portland, was knocked down and run over by an automobile driven by the defendant. She commenced this action to recover the damage sustained. The cause was tried to a jury, and a verdict was had, and a judgment was entered thereon in favor of the defendant at the trial. On motion of the plaintiff, on the ground of misdirection to the jury, an order was entered vacating the judgment and granting a new trial. Defendant appeals from the order.

The accident to plaintiff occurred about 6 o'clock in the evening of February 15, 1922, at the intersection of East Thirty-Seventh street and Sandy boulevard, which intersection is east of the viaduct on Sandy boulevard crossing the Oregon-Washington Railroad &amp Navigation Company tracks. The defendant, after driving his automobile from the west over said viaduct, and while turning north from Sandy boulevard onto East Thirty-Seventh street and while on the wrong side of East Thirty-Seventh street ran over plaintiff. In making the turn, which was a left-hand turn, instead of passing beyond and to the right of the center of the intersection of the two streets as required by the statute, defendant cut the corner and entered onto East Thirty-Seventh street on the west or left-hand side instead of on the east or right-hand side of the street and ran over the plaintiff while on the wrong side of the street as she was crossing said street at a regular crossing from the west to the east side and when she had taken but a few steps from the west curb and before she had reached the center of the street. This act of the defendant is one of the acts alleged in the complaint as a negligent act, and is alleged to have been the proximate cause of plaintiff's injury. The defendant, at the trial, admitted while on the stand that he did cut the corner and that he ran over the plaintiff while on the wrong side of the street. He testified that it was raining very hard at the time, and that the wind was blowing, and that he did not see the plaintiff or know of her presence until he felt her contact with the car, and that he stopped the car almost immediately and saw her lying on the street between the wheels on the left-hand side of his car. He also testified that there was, at the time, a large number of automobiles being driven in both directions along Sandy boulevard where it intersects East Thirty-Seventh street.

By his answer the defendant denied all of the negligent acts charged in the complaint and pleaded contributory negligence on the part of the plaintiff. The allegations of the answer charging contributory negligence are as follows:

"That at the time defendant's automobile approached the intersection of Thirty-Seventh street, the traffic on Sandy boulevard was very heavy, and automobiles and street cars were passing in great numbers in both an easterly and westerly direction. That when defendant's automobile turned off Sandy boulevard onto Thirty-Seventh street, as aforesaid, defendant was unable to see plaintiff as she stepped off said curb and proceeded across the street, and was unable to see plaintiff at any time prior to the contact between the plaintiff and defendant's automobile, and that the inability of defendant to see plaintiff was due to the fact that plaintiff was dressed entirely in black or dark clothing and that plaintiff's face was entirely covered by an umbrella carried by plaintiff as hereinafter alleged.

"That plaintiff stepped off of the curb on the northwest corner of Thirty-Seventh street and Sandy boulevard at a point a little north of the regular crossing commonly used by pedestrians, and was proceeding in an easterly direction toward the east side of said Thirty-Seventh street, and when plaintiff had reached a point near the center of said Thirty-Seventh street plaintiff carelessly, recklessly, and negligently walked into and against the left front fender of defendant's automobile, and as a result was thrown to the pavement.

"That plaintiff proceeded across said Thirty-Seventh street to the point where she came in contact with defendant's automobile, in a careless, reckless, and negligent manner and without regard for her own safety That plaintiff was negligent: First, in that she stepped off of said curb and started across said Thirty-Seventh street without looking either to her right or her left, to see if any vehicles or automobiles were approaching, and proceeded across said street at a time when it was very dark and raining hard, without taking any notice of the traffic on said street; and, secondly, the plaintiff was negligent in that she was carrying an umbrella raised and open over her head, in such a position as to wholly obstruct her view and vision towards her right, so that it was impossible for plaintiff to see any vehicle or automobile turning onto Thirty-Seventh street from Sandy boulevard.

"That said accident was not caused by any negligence on the part of defendant, but was caused or contributed to by the negligence of the plaintiff as herein alleged."

Plaintiff testified that before leaving the curb on the west side of East Thirty-Seventh street and proceeding to cross the street, she looked in both directions and, seeing no automobiles coming or going on East Thirty-Seventh street, she started to cross the street, and after taking two or three steps from the curb the first thing she remembered was being asked if she was badly hurt.

The court, amongst other things, charged the jury:

"If you believe from the evidence that the injuries to the plaintiff were the result of a mere accident or unavoidable accident and not due to any acts of negligence charged against the defendant in the complaint, then you should return a verdict for the defendant. There is in the world such a thing as a pure accident where nobody is negligent; such things do exist and the law takes notice of it, and if this was that kind of an accident, where nobody was negligent, there cannot be a recovery, because a recovery must be based upon negligence of the driver of the car without negligence on the part of the lady who was hurt."

There was no evidence that the injuries to plaintiff were the result of a mere accident or an unavoidable accident. The whole evidence, including the admission of the defendant himself while on the stand, established that the defendant was negligent and that plaintiff's injuries were caused by defendant's negligence in driving on the wrong side of the street as he was when he ran over plaintiff, and that this negligence continued up to the very instant when defendant ran over the plaintiff. It would have been physically impossible for the accident to have happened if defendant had been driving his automobile on the right side of the street instead of on the wrong side of the street. Hence, it was error for the court to instruct the jury that they had a right to find that plaintiff sustained her injuries from a mere accident which could occur without the fault of any one. By this instruction the jury were led to assume, as a matter of fact, that under the evidence offered there was evidence tending to show that plaintiff might have been injured without fault upon the part of the defendant. The evidence clearly established that defendant's negligence was the proximate and direct cause of the injuries complained of, and under the pleadings and proof the liability of the defendant depended upon whether the plaintiff herself had been guilty of some negligence which partly directly caused her injury.

Since there was no evidence which tended to show that plaintiff sustained her injuries without fault on the part of the defendant, as she must have done if her injuries were the result of a mere accident, the instruction was misleading, in that it tended to cause the jury to assume a state of facts to exist in direct contradiction of all of the evidence, and concerning which no evidence in its support could be found in the record. Such an assumption was bound to be prejudicial to plaintiff, since it would relieve the defendant from responsibility for his own wrong without any fault or contributory negligence on the part of the plaintiff. See Bowen v. Clarke, 22 Or. 566, 30 P. 430, 29 Am. St. Rep. 625; State v. Weaver, 35 Or. 415, 418, 58 P. 109; Pearson v. Dryden, 28 Or. 350, 43 P. 166; Thompson, Administratrix, v. Union Fishermen's Co-operative Packing Co. (Or.) 235 P. 694, decided April 28, 1925.

Amongst other things, the court charged the jury that--

"If you shall find from

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