Parmentier v. Ransom

• Decision Date: 04 June 1946
• Citation: 169 P.2d 883,179 Or. 17
• Parties: PARMENTIER <I>v.</I> RANSOM ET AL.
• Court: Oregon Supreme Court

179 Or. 17

169 P.2d 883

PARMENTIER

v. RANSOM ET AL.

Supreme Court of Oregon.

Argued April 17, 1946.

Affirmed June 4, 1946.

Trial — Order of proof

1. To permit a plaintiff, after resting his case, to add to his proof, is disapproved.

Trial — Order of proof

2. The trial court in its discretion for good reasons and in furtherance of justice may permit a departure from strict order of proof, and its rulings in respect thereto will not be reviewed except for abuse of discretion.

Trial — Rebuttal evidence

3. The trial court in its discretion can admit in rebuttal evidence which tends to controvert unexpected evidence adduced by a defendant.

Trial — Rebuttal evidence

4. In automobile accident case, defendants' strong showing of absence of fog was unexpected evidence to meet which the trial court in its discretion was justified in permitting plaintiff to offer evidence in rebuttal, where pleadings were such that plaintiff reasonably assumed that defendants did not seriously contest plaintiff's allegations respecting foggy conditions and hence to have contented herself with making only a prima facie showing of such conditions.

New trial — Argument of counsel

5. The refusal to grant new trial for alleged impropriety of counsel in stating in argument to jury his belief as to cause of automobile accident, was not reversible error, where no timely objection to statement was made.

New trial — On motion of court

6. In the furtherance of justice the trial court is given a wide latitude in granting new trial on its own motion to correct errors of law, even when no exception has been taken upon the trial.

Appeal and error — Trial — Instructions — Exceptions

7. Where exception to error of law is taken for the first time on motion for a new trial and such motion is denied, the rule on appeal is that it is not error alone but error legally excepted to that constitutes grounds for reversal.

Trial — Instructions — Oral admissions

8. In personal injury action, medical witness' testimony as to statements made to witness by plaintiff after the accident that plaintiff's physical disabilities were caused by poor eyesight or rheumatism rather than the accident, was evidence of oral admissions warranting the statutory instruction that oral admissions of a party should be received with caution.

Trial — Instructions — Oral admissions

9. The trial of every case is a proper occasion upon which may be given the statutory instruction that oral admissions of a party should be received with caution.

Appeal and error — Trial — Instructions — Exceptions

10. Appellants could not urge the assignment that the giving of instruction was error, where no timely exception to the instruction was taken.

Trial — Instructions

11. Instructions are to be considered as an entirety, and it is immaterial that one or more of them considered separately may be erroneous if from the instructions as a whole, the jury were correctly charged as to the law in its application to the facts.

Trial — Instructions — Forms of verdict

12. Where the trial court in the instruction submitting forms of verdict specifically directed jurors' attention to all the evidence and instructions, and the instructions included correct instructions respecting negligence and contributory negligence, a repetition of the instructions respecting negligence and contributory negligence in the instruction submitting the forms of verdict was unnecessary.

New trial — Affidavits of jurors

13. Affidavits of jurors may not be received for the purpose of impeaching their verdict.

                  See 3 Am. Jur. 48
                  64 C.J., Trial, § 176
                

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

Custer E. Ross, of Salem (Ross & Lewelling, of Salem, on brief), for appellants.

Paul F. Burris, of Salem, for respondent.

Before BELT, Chief Justice, and ROSSMAN, BAILEY, LUSK, BRAND and HAY, Justices.

AFFIRMED.

HAY, J.

This is an action for damages arising out of negligently inflicted injuries to the person. Plaintiff and her mother were employed upon the night shift at a dehydration plant in Salem, Oregon. At about seven o'clock in the morning of December 14, 1943, they were being transported from the place of their employment toward their home, as guest passengers in an automobile driven by Roland Bair, a fellow employee. The amended complaint alleges that the morning was dark and the weather foggy. At a point about a mile north of Salem, a collision occurred between their car and a Ford pick-up car owned by the defendant Ransom and driven by the defendant Clyde Poulton, whereby plaintiff sustained serious bodily injuries.

The defendants were charged with negligence in causing their car to be driven backwards upon the right half of the highway, in the path of the automobile in which plaintiff was riding; in failing to maintain a proper or any lookout; in driving without lights; and in failing to use due caution and circumspection in the premises.

Defendants, denying negligence on their part, charged plaintiff with contributory negligence, in that, while her driver was driving at an unreasonable and imprudent rate of speed considering the surface and width of the highway, the impairments to vision then existing, and the possibility of there being other traffic on the road, plaintiff, although she observed or should have observed such negligent conduct and apprehended the dangers incident thereto, failed and neglected to remonstrate with the driver or to take reasonable precautions for her own safety.

Trial by jury resulted in a verdict for plaintiff of $6,000. Motion for a new trial was denied, and defendants appealed.

The defendant Ransom was a plumbing contractor and the defendant Poulton was a laborer in his employ. F.G. Kurtz was Ransom's foreman. In addition to the Ford pick-up, Ransom owned a Dodge pick-up. On the night preceding the accident, these cars were parked, back to back, in the driveway at Kurtz's home, the Ford headed toward and the Dodge away from the highway. On the morning of the accident, Mr. Kurtz attempted to start the Ford by means of the starting mechanism, but was unable to do so. Thereafter, driving the Dodge pick-up backwards, he attempted to start the Ford engine under compression, by using the Dodge to push the Ford along the driveway and into and northerly along the highway. The Ford engine eventually started, and thereupon Poulton gave Kurtz a prearranged signal. According to Kurtz and Poulton, they had observed the lights of Bair's car approaching from the south, at a distance of about a quarter of a mile away, while they were entering upon the highway. Kurtz testified that, by the time Poulton signalled that his engine had started, Bair's car had approached to within 300 feet. Kurtz thereupon, as rapidly as he was able, drove the Dodge to the west shoulder of the highway and parked it there. He had been driving the Dodge backwards, so it was headed southerly, or in the direction from which Bair was approaching. He said that Bair's car passed him at a speed of fifty miles an hour, and immediately collided with the Ford pick-up. Poulton denied that he was backing up at the time of the collision, and said that he was proceeding slowly forward, displaying the customary lights. Plaintiff and her mother testified that Bair was driving carefully, at a speed which they estimated as between twenty-five and thirty miles an hour, and that the Ford pick-up was being driven backwards, without lights. They said that the weather was very foggy, with visibility of only from eight to twelve feet. This was controverted by defendants' witnesses, who testified that there was no fog, or, at most, only a slight haze. Bair did not testify, having been inducted into the United States Navy, and being, at the time of the trial, "somewhere in the south Pacific".

1-4. As a part of her case on rebuttal, plaintiff was permitted, over objection, to adduce testimony of a woman, who resided in close proximity to the place of the accident, that the weather was foggy to the extent that, from the porch of her house, she was unable to see her mail-box on the highway. To permit a plaintiff, after resting his case, to add to his proof, is a practice not to be encouraged. Jones, Evidence, 3d ed., section 809. The court, however, in its discretion, "for good reasons and in furtherance of justice", may permit a departure from the strict...