Phillips v. Creighton

• Decision Date: 16 October 1957
• Citation: 316 P.2d 302,211 Or. 645
• Parties: R. L. PHILLIPS, as Guardian of the Person and Estate of James Phillips, a Minor, Appellant, v. Chas. W. CREIGHTON, Jr., as Administrator of the Estate of T. M. Gosser, Deceased, Respondent.
• Court: Oregon Supreme Court

Page 302

316 P.2d 302

211 Or. 645

R. L. PHILLIPS, as Guardian of the Person and Estate of James Phillips, a Minor, Appellant, v. Chas. W. CREIGHTON, Jr., as Administrator of the Estate of T. M. Gosser, Deceased, Respondent.

Supreme Court of Oregon, Department 1.

Argued Nov. 28, 1956.

Decided Oct. 16, 1957.

Allan G. Carson, Salem, argued the cause for appellant. With him on the brief were John A. Heltzel and Peter M. Gunnar, Salem.

Asa L. Lewelling, Salem, argued the cause and filed a brief for respondent.

Before WARNER ¹, C. J., and ROSSMAN, PERRY ² and McALLISTER, JJ.

McALLISTER, Justice.

This is an action by the plaintiff, R. L. Phillips as guardian of his infant son, James Phillips, against T. M. Gosser to recover damages for personal injuries sustained by said minor when he was struck by an automobile owned and driven by Mr. Gosser. After the action was filed, Mr. Gosser died, and Chas. W. Creighton, Jr. was appointed administrator of his estate and substituted as the defendant. When the case was first tried the jury was unable to agree and was discharged. The second trial resulted in a verdict in favor of the defendant and from the judgment based thereon the plaintiff appeals.

The plaintiff's brief contains nine assignments of error, six of which involve the giving or refusal to give certain instructions to the jury. Two assignments of error are based on the exclusion of testimony by the court and the other concerns the action of the court in permitting the widow of T. M. Gosser, who at the time of the trial had remarried, to sit at the counsel table during the trial with the attorney for the defendant.

The accident occurred on September 19, 1950, at about 5:12 o'clock p. m. in a rural area about three miles east of Salem on the Geer road which at that place runs east and west. Gosser was traveling westward and the road proceeding in that direction runs downhill into and across a small valley and then up the west slope of the valley at a grade estimated from 20 to 25 percent. There are fields on both sides of the road through the valley with a small orchard along the south side at the scene of the accident. The Phillips home is situated at the south side of the road near the top of the hill on the west side of the valley.

The evidence indicates that immediately prior to the accident, James Phillips, who was then just three years old, and his brother Roger, who was four years old, were playing in a patch of weeds on the south side of the road about 150 feet east of the Phillips driveway. The weeds were about 33 inches tall and according to their father, James was 39 inches and Roger 42 inches tall. Trails had been trampled in the weeds and after the accident a little red wagon with which the boys had been playing was found in the weed patch.

After the accident Gosser told an officer of the Oregon State Police who was investigating the accident that the two boys ran onto the road from the weed patch and ran across toward the north side of the road; that he did not see the boys until they ran out of the weeds; that Roger stopped at the center line of the highway but that James continued and was struck by the car. The left headlight of the car was shattered and there was a dent immediately under that headlight. James received very severe permanent injuries.

According to the state police, the skidmarks leading to the Gosser car started north of but close to the center line of the highway and angled toward the north edge of the pavement. The longest skidmark extended for 62 feet. The plaintiff testified that the southerly skidmark started slightly south of the center line. The car was stopped on the north shoulder about 20 feet beyond the west end of the skidmarks. The accident occurred on a clear, sunny day and witnesses testified that after the accident Gosser said in effect that he 'was facing the sun' or 'that the sun was in his eyes.'

Prior to the trial the attorney for the defendant asked the court for permission to have the widow of T. M. Gosser, who had remarried and was then Mrs. Daisy Loveland, sit at the counsel table with him during the trial. The request was granted over the objection of the plaintiff. It appears that the defendant, Chas. W. Creighton, Jr., is a Salem attorney who was appointed administrator of the estate of T. M. Gosser upon the petition of the plaintiff so that the action might be continued and had no other interest in the case. Plaintiff contended that Mrs. Loveland had no financial interest in the outcome of the case and that 'it would put an improper color on the case to have her sitting there as a defendant when she is actually not a defendant.' Nothing further was offered to show how the plaintiff would be prejudiced by the presence of Mrs. Loveland at the counsel table. The manner of conducting a trial rests in the sound discretion of the trial court and we can not say that there was any abuse of that discretion in this case. Cholia v. Kelty, 155 Or. 287, 63 P.2d 895; Best v. Tavenner, 189 Or. 46, 218 P.2d 471; and Denton v. Arnstein, 197 Or. 28, 250 P.2d 407.

Plaintiff called as a witness James G. Lauderback who testified that during the afternoon of the accident he was plowing in a field about three quarters of a mile south and east across the draw from the Phillips home. Plaintiff offered to prove by this witness that while he was plowing he saw a car traveling west on the Geer road as it went down the hill and across the valley until it started up the hill on the other side; that right away he heard tires 'howling on the pavement like somebody was trying to stop' but did not hear any impact; that he thought the car was traveling 'plenty fast * * * 50 miles an hour easy.' The witness did not fix the time except to say that it was 'along in the evening, I don't know what time.' The ruling of the court in sustaining defendant's objection to this testimony is assigned as error.

Lauderback did not describe the car observed by him nor was any other evidence offered to prove that the car seen by Lauderback was the Gosser car. The time at which Lauderback saw the car was not fixed with any certainty and might have been before or after the accident. It might be inferred that the car Lauderback saw left skidmarks but there is no direct evidence of that fact. Nor is there any evidence that there were no other skidmarks on the highway that evening except those leading to the Gosser car. In the absence of any evidence to identify the car seen by Lauderback as the Gosser car, we think the trial court did not err in excluding this evidence.

Plaintiff also assigns as error the exclusion of the testimony of plaintiff that sometime after the accident Mr. Gosser made the following statement to Mr. Phillips:

'He told me that we had nothing to worry about, that everything would be taken care of.'

The rule adopted by this court governing the admissibility of statements such as that made by Mr. Gosser is stated in Briggs v. John Yeon Co., 168 Or. 239, 254, 122 P.2d 444, 450:

'* * * The correct rule in that regard which seems, however, not to have been recognized in our decision in McCallister v. Farra, 117 Or. 278, 284, 243 P. 785, is, as stated by Circuit Judge Soper in Arnold v. Owens, 4 Cir., 78 F.2d 495, 497, 'that a voluntary offer of assistance made upon an impulse of benevolence or sympathy may not be considered an admission of culpable causation (citing authorities). If, however, the surrounding circumstances indicate, not merely an act of benevolence, but some admission of fault on the part of the defendant, the evidence may be admissible.' See: Watt v. Associated Oil Co., 123 Or. 50, 260 P. 1012; Bernasconi v. Bassi, 261 Mass. 26, 28, 158 N.E. 341; Grogan v. Dooley, 211 N.Y. 30, 105 N.E. 135; Sias v. Consolidated Lighting Co., 73 Vt. 35, 40, 50 A. 554; Patrick v. Bryan, 202 N.C. 62, 162 S.E. 207; Norman v. Porter, 197 N.C. 222, 148 S.E. 41; Binewicz v. Haglin, 103 Minn. 297, 115 N.W. 271, 15 L.R.A.,N.S., 1096, 14 Ann.Cas. 225; Wilson v. Daniels, 250 Mass. 359, 364, 145 N.E. 469.'

The above rule was followed in Dunning v. Northwestern Electric Co., 186 Or. 379, 199 P.2d 648, 206 P.2d 1177, which expressly overruled McCallister v. Farra, supra.

We believe the statement made by Mr. Gosser does not in itself constitute an admission of fault and in the absence of circumstances indicating that the statement could be so construed, the testimony was properly excluded. We have reviewed the authorities cited in plaintiff's brief which include Brown v. Wood, 201 N.C. 309, 160 S.E. 281, and insofar as they are in conflict with the rule adopted by this court, we decline to follow them.

The plaintiff assigns as error the failure of the court to give the following requested instruction:

'It is the duty of a person driving a motor vehicle on and along a public highway to keep a reasonably constant and continuous lookout.

'This is a continuing duty, and the obligation is upon one so driving a motor vehicle on a public highway continually to be on the lookout for others moving onto or on and along or across the roadway.

'This means not only to look, but also to see and observe that which an ordinarily prudent person in the position of the driver could see and observe.

'I instruct you that if you find from a preponderance of the evidence that Mr. Gosser failed to keep a reasonably constant and continuous lookout as he drove on and along the highway, you must find that he was guilty of negligence.'

In his complaint the plaintiff alleged that Gosser was negligent in driving without any lookout. The court called the attention of the jury to this and the other specific charges of negligence but did not further define or explain Gosser's duty to maintain a lookout. If a proper instruction on this subject had been requested it should have been given.

This court has consistently held that an operator of a motor vehicle must maintain such a lookout as a reasonably prudent...