Riley v. Good

• Decision Date: 24 January 1933
• Citation: 18 P.2d 222,142 Or. 155
• Parties: RILEY v. GOOD. [*]
• Court: Oregon Supreme Court

18 P.2d 222

142 Or. 155

RILEY v. GOOD. ^[*]

Supreme Court of Oregon

January 24, 1933

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by George A. Riley against John A. Good. From a judgment for defendant, plaintiff appeals.

Affirmed.

Elam Amstutz and T. A. Weinke, both of Portland, for appellant.

Frank S. Senn and James Arthur Powers, both of Portland (Senn &amp Recken, of Portland, on the brief), for respondent.

CAMPBELL J.

Plaintiff alleges that at about 5:30 o'clock, p. m., on December 9 1930, while walking easterly on the northerly side of East Morrison street, in the pedestrian lane of travel, across its intersection with East Water, he was knocked down and was injured by a truck belonging to defendant. He alleges that the cause of his injury was the negligence of defendant's truck driver in the manner in which the truck was operated that the truck was loaded with some iron pipe or structural iron that extended beyond the body of the truck to the rear about seven feet, without any light or signal attached to the projecting end; that while he was standing in the street, about three feet to the right of the truck, the truck, traveling south, had passed him when, without warning, it suddenly turned to the left, thus causing the projecting iron to swing to the right, hitting him, knocking him down, and injuring him.

The acts of negligence were denied by the defendant, who affirmatively alleges that if the defendant was injured, at the time alleged, it was an unavoidable accident so far as defendant was concerned, and that any injuries that plaintiff may have sustained, if any, were on account of his own negligence in not using his senses and faculties in avoiding such an accident.

The cause was tried to a jury and resulted in a verdict and judgment for defendant. Plaintiff appeals.

There are five assignments of error.

1. It is claimed that the court erred in refusing to admit in evidence the testimony of Fred Reigelman, a witness called by plaintiff in his case in chief.

The witness, a friend of plaintiff, visited him shortly after the accident. At about 7 o'clock p. m., he called up the office of defendant on the telephone and inquired for the manager. He claims that he recognized the voice that answered him as that of C. E. Good, defendant's son, and manager of defendant's business. The witness was about to testify to the telephone conversation. He was asked: "Q. What did you tell him over the telephone? A. All I told him-" Here defendant interposed an objection, and after some argument, the objection was sustained. Plaintiff made no offer of proof. The strongest statement that he made, as to what he intended to prove, was made in his argument to the court. In speaking of the said C. E. Good, he said: "*** He tells a man that this truck load is at a certain point, admits that truck was there, where they were, and established that it was loaded with merchandise belonging to these people, being operated in the course of business of the master at that particular time of the day; admitted that they had pipe on there like we say we were injured by, and I think that that would be such a declaration as would be binding upon the principal providing he had authority to make such a statement, and I think he did in the course of his employment where he is directing trucks, telling Reigelman where he got this merchandise, and has charge of the business. If he made the admission at that particular time that they did have such merchandise it would be some evidence of that fact."

The kind of merchandise with which the truck was loaded was immaterial. But what would be material, was the manner in which it was loaded on the truck and whether it had a light or flag at the extreme projecting end. We cannot determine, from the record, what testimony the witness would have given on that point; therefore we cannot say that the plaintiff was prejudiced. Neither can we say that the statement made, if any, would be binding on the defendant or not, nor do we know if any such statement touching the condition of the truck or load was the condition that existed one or two hours before the statement was made.

The reasons given by the trial court for excluding testimony objected to is immaterial, and unless this court can say that the trial court's conclusion was erroneous and prejudicial, its ruling will not be cause for reversal of the judgment. Strickler v. P. R., L. & P. Co., 79 Or. 526, 144 P. 1193, 155 P. 1195; Ashmun v. Nichols, 92 Or. 232, 178 P. 234, 180 P. 510; Columbia, etc., v. Alameda, etc., 87 Or. 277, 168 P. 64, 440.

Plaintiff produced a witness, Mr. Langley, who testified that he saw the accident, and how it happened, and what caused it. One witness entitled to full faith and credit is sufficient to establish any fact in issue in the instant case. Oregon Code 1930, § 9-201.

2. The ruling of the trial court in excluding the testimony of the witness Fred Reigelman, in rebuttal, is assigned as error.

C. E. Good, the man referred to in assignment of error No. 1, was called as witness in behalf of defendant. He testified in effect that he was at the office of the defendant, when somebody called over the telephone regarding the accident; that he examined the truck that was claimed to have been involved; and that there was nothing sticking out beyond the tail gate. On cross-examination, he testified as follows:

"Q. Do you recall a telephone conversation with Mr. Reigelman that night in which you made the statement that there was something sticking out but not to exceed three feet? A. I do not.

"Q. You deny that? A. I deny that.

"Q. Do you deny the telephone conversation? A. No, sir."

Mr. Reigelman was called in rebuttal and was asked:

"Q. Do you remember whether you had a conversation with him over the telephone? A. I did.

"Q. What did you tell Mr. Good over the telephone?"

This question was objected to and the objection sustained. This could only be impeaching testimony, and plaintiff not having laid the proper grounds for impeachment, and not having asked the question in the form required for an impeaching question, he could not introduce the testimony he was attempting to; and again he made no offer of proof, so that even if the testimony should have been admissible, without an offer of proof, we cannot say error was committed. Gabel v. Oliver, 130 Or. 392, 280 P. 496; State v. Miller, 119 Or. 409, 243 P. 72, and cases cited on assignment of error No. 1.

3. Appellant assigns error on the failure of the court to give the following requested instruction: "I instruct you that if you find from a preponderance of the evidence that the plaintiff was proceeding as a pedestrian across the intersection at the time and place described in the complaint as amended at the regular crossing for pedestrians and that he at that time was exercising due care and caution for his own safety, and that while he was so doing he saw the truck of the defendant Good coming into the intersection from the left on Water Street and waited for it to pass before he proceeded to cross the street, and there was nothing in the appearance of said truck from where the plaintiff was waiting for said truck to pass him to indicate or warn him that it was loaded with an iron bar, or other like substance extending beyond the rear body of said truck for more than three feet, if it was so loaded, then the plaintiff, Riley, had the right to assume as a matter of law that any overhanging load of three feet or more would have attached to it in the day time a red flag and in the night time...