Perry v. Pickwick Stages of Oregon

• Decision Date: 23 February 1926
• Citation: 117 Or. 598,243 P. 787
• Parties: PERRY v. PICKWICK STAGES OF OREGON. [a1]
• Court: Oregon Supreme Court

243 P. 787

117 Or. 598

PERRY v. PICKWICK STAGES OF OREGON. ^[a1]

Supreme Court of Oregon

February 23, 1926

Department 1.

Appeal from Circuit Court, Josephine County; C. M. Thomas, Judge.

Action by Manuel Perry against the Pickwick Stages of Oregon, an Oregon corporation, and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

E. K. Oppenheimer, of Portland (Wilbur, Beckett &amp Howell, of Portland, and J. N. Johnston, of Grants Pass, on the brief), for appellant.

James T. Chinnock, of Grants Pass (W. T. Miller, of Grants Pass, on the brief), for respondent.

BURNETT J.

This action was brought by the plaintiff against the defendant Pickwick Stages of Oregon, a corporation and common carrier of passengers, and Steve M. Thames, its driver, to recover damages caused to him by the overturning of one of the stages of the defendant company in which, at the time, the plaintiff was a passenger. The driver was eliminated from the proceedings, so that the only parties before us at this time are the plaintiff and the defendant corporation.

The complaint charges negligence against the defendant in this language:

"That the said defendant, Pickwick Stages of Oregon, and its said employee, Steve M. Thames, defendant above named negligently, carelessly, and unskillfully operated said automobile stage by driving the same at an unlawful rate of speed along said highway, and in excess of 30 miles per hour; that the brakes on said automobile were absolutely inadequate and insufficient to control and stop the same; that the highway upon which said automobile was then traveling crosses a hill, and curves sharply in several places, and that said automobile was traveling far in excess of a rate of speed reasonably safe for traveling on said highway at said point; that said defendant Steve M. Thames, then and there being and acting as an employee of said Pickwick Stages of Oregon, then and there drove and operated said automobile in such careless, unskillful, and negligent manner, and well knowing that the brakes upon said automobile were entirely insufficient and inadequate to control the same, and at a rate of speed in excess of the lawful rate, and in excess of a rate of speed reasonably safe for traveling upon said highway at said point, as to cause the said automobile to leave said highway and completely turn over down the side of the hill, thereby throwing the plaintiff above named therefrom and injuring him as hereinafter set forth; that the said automobile was, at the time of leaving said highway aforesaid, traveling on and around a curve on said highway, at which point it was not reasonably safe to travel at a rate of speed in excess of 15 miles per hour, notwithstanding which the said defendants operated and drove the said machine carelessly, recklessly, and in absolute disregard to the safety of their said passenger, plaintiff above named, and others riding in said automobile, at a rate of speed in excess of 30 miles per hour, and notwithstanding the fact that said defendant had failed and neglected knowingly and wantonly, carelessly, and negligently to provide and supply said automobile with adequate or sufficient brakes."

As to his injuries the complaint employs this language:

"That the plaintiff above named, by reason of the carelessness and negligence of the defendants as above set forth, and as a result of being thrown from said automobile, was severely and greatly injured, that is to say, that the plaintiff suffered and received broken ribs, his back was strained, and he received internal injuries; that he suffered severe physical and mental shock, and great shock and injury to his nervous system, and that his nose was broken, thereby permanently disfiguring said plaintiff, and plaintiff believes and avers that he was permanently injured, and that he will be unable to follow his occupation whereby he earns his living, to wit, that of a ship rigger; and as a result thereof this plaintiff has been greatly damaged, to wit, in the sum of $12,000, no part of which has been paid."

The defendant admits that it is a corporation engaged in the business of carrying persons for hire by means of automobiles which it operates as a stage line along the Pacific Highway in the state of Oregon. It admits also that the plaintiff was a passenger at the time mentioned in the complaint, but otherwise denies that pleading entirely. The defendant alleges that the mishap referred to in the complaint was a pure accident, occurring without the fault or negligence of either of the defendants, and could not have been prevented. This in turn was traversed by the reply. A jury trial resulted in a verdict and judgment for the plaintiff, and the defendant, Pickwick Stages of Oregon, has appealed.

Deeming all other objections and assignments of error waived, we consider only those discussed in the defendant's brief. See Carty v. McMenamin, 216 P. 228, 108 Or. 489, cited with approval in State ex rel. v. Elliott, 233 P. 867, 113 Or. 632. Complaint is made that counsel for the plaintiff was guilty of improper argument to the jury, and that the court erred in refusing to dismiss the jury. In his address to the jury, the plaintiff's counsel had referred a number of times to the fact that the plaintiff had a wife and family, and finally said substantially that they might be reduced to poverty and crime by reason of the fact of his not having sufficient food and clothing for them. The following then occurred: The counsel for defendant said:

"I object to counsel's statement to the jury, and move for a dismissal of the case because of counsel's statement to the jury." Each time the defendant had objected to such allusions by plaintiff's counsel, the court had sustained the objection, and instructed the jury to disregard the statements. In answer to the objection just quoted the court said:

"Yes, I will say to the jury that any remarks in connection with the family, the objection is sustained. The case must not be decided upon the question of sympathy,"

--and directed counsel for plaintiff to proceed. Whereupon the counsel for the defendant said:

"We ask an exception to the remarks of counsel and to the refusal to dismiss the jury."

To dismiss a case is to bar further prosecution, except as allowed by a judgment of nonsuit. The defendant had no right to such a result merely on account of the opposing counsel's transgression of the rules as above described. Possibly, if in the judgment of the trial court the conduct of the plaintiff's counsel was flagrant, the jury might have been dismissed and a new trial ordered. That, however was not the relief called for by the defendant counsel. It is one thing to dismiss the case, thus rendering final judgment, and quite another only to dismiss the jury, leaving the case to be tried again. Exceptions to be available as assignments of error go only to the rulings of the court upon questions properly presented. Exceptions to the conduct of opposing counsel count as nothing, unless the ruling of the trial judge respecting them is excepted to. We are concerned only with the errors of the trial court, and even with those only to which proper exception is made. The whole attitude of the court, as disclosed by the record, including the instructions to the jury, was that the possession of a family by the plaintiff had nothing to do with the case. So far as challenged by the statements of the defendant's counsel, there was no error in the action of the court in that respect. Maynard v. Oregon Railroad Co., 78 P. 983...