Schneider v. Moe
| Decision Date | 22 October 1935 |
| Citation | 50 P.2d 577,151 Or. 353 |
| Parties | SCHNEIDER v. MOE. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.
Action by Fred Schneider against John J. Moe. Judgment for plaintiff, and defendant appeals.
Reversed.
Robert F. Maguire, of Portland (Maguire, Shields & Morrison and Delmas R. Richmond, all of Portland, on the brief), for appellant.
E. M Morton, of Portland (C. W. Kirk and J. O. Johnson, both of Portland, on the brief), for respondent.
The plaintiff, a pedestrian, while walking on the north pedestrian lane crossing Union avenue at its intersection with Fremont street in the city of Portland, was struck and severely injured by an automobile driven by the minor son of the defendant. Traffic at this intersection on both streets is controlled by traffic lights.
Plaintiff recovered judgment against the defendant for the sum of $7,500, and defendant has appealed.
Upon the trial of the cause in the court below, one Dan Schmiedeberg, a witness for the defendant, testified that he was a part owner of a filling station located on the northeast corner of said intersection; that at the time of the accident he was standing, leaning on the back end of his car, right up against his air line, and talking to an employee; that he saw the plaintiff step off the curb on to the street; "he took probably two steps when I first happened to notice him and then I noticed him take six or eight real quick steps for a car to go behind him; he had stepped towards the center of the street, and as the car went behind him he faced north to the car that had passed him and kept on walking and took possibly two or three steps more and stepped right into the side of another car that was going north; and then he fell and I went in and called the ambulance and when I got back out the crowd had carried him to the curb, and things passed on, then I didn't know what happened." He also testified that at the time of the accident the traffic was going north and south on Union avenue, and that he did not notice the lights.
On cross-examination, in an effort to impeach his testimony Schmiedeberg was asked if he had not told a daughter of plaintiff at a time and place stated that he did not see the accident and could not see it and could not tell how the lights were at the time of the accident, and the witness denied ever having made such a statement.
On rebuttal, Mrs. Linda Boehi, the daughter of plaintiff, was called as a witness, and she testified that she asked Mr Schmiedeberg if he had seen the accident, and that he had said, "No," and that she asked him how the lights were, and he said that he heard the noise when plaintiff fell, and that he did not know whether the lights at that time were red or green.
On surrebuttal, defendant called Spencer Reeves, and, after showing that he was the employee of Schmiedeberg with whom Schmiedeberg was talking at the time of the accident, and that he himself did not see the accident because his back was turned, offered to prove by Reeves that Schmiedeberg at the time of the accident exclaimed: "The old man has been hit."
On objections of the plaintiff, the offer was denied in toto and the defendant was not permitted to show where Schmiedeberg was standing or anything said or done by him concurrently with the happening of the accident.
This action by the court was assigned as error. We think that this testimony was admissible. The exclamation by Schmiedeberg that "The old man has been hit," made at the instant of the happening of the accident was not a narrative of a past transaction, but was an involuntary exclamation, and was admissible as a part of the res gestæ. The exclusion of this evidence was more harmful to the defendant than would ordinarily be the case because of another circumstance connected with the trial which will now be stated.
It appears from the affidavits filed on the motion for a new trial, both for and against the motion, that L. K. Thompson, one of the jurors, during the trial of the cause without the consent of the court and without the knowledge of either the plaintiff or the defendant, went to the filling station above referred to and made an independent examination of the premises in order to ascertain whether Schmiedeberg, if standing at the place testified to, could have seen the accident, and, after the close of the testimony and during the time the jury was deliberating upon its verdict, informed two or three of the jurors then deliberating upon their verdict, that Schmiedeberg could not have seen the accident if at the place testified to. The circumstances attendant upon Thompson's playing the part of a private detective while acting as a juror in the case is wholly unexplained under the record. What he did while at the filling station appears from the affidavit of William J. Hohl, as follows: "*** on the 28th day of November, 1934, I was working at my service station on the northeast corner of the intersection of NE Union Ave and Fremont St. in Portland, Ore; That about 7:30 a. m. a man drove up to my station and purchased two quarts of oil; that after the purchase this man stated he was a juror on a case which involved an accident that occurred at the intersection of Union Ave. and Fremont Street and stated he wanted to see the intersection and that there was some squabble about an air line and he wanted to see where it was located.
He looked over the intersection and air line and then stated that one of the boys at my station had been a witness and asked where he was standing when he saw the accident. I pointed out to this man where my partner. Dan Schmiedeberg was standing at the time of the accident and he looked over the place near the airline where he was standing and the position of the car he was leaning against."
We think that when the actions of this juror had been disclosed to the trial court by the uncontradicted affidavits field in support of the motion for a new trial an no explanation or denial of this unwarranted conduct upon the part of one of the jurors had been made, the motion should have been granted, and its refusal by the trial court was an abuse of discretion.
In Frank v. Matthiesen, 115 Or. 349, 236 P. 754, 756, the court quoted with approval an excerpt, which, after stating that every unauthorized view of the locus in quo will not require the setting aside of a verdict, then said:
In Woodbury v. City of Anoka, 52 Minn. 329, 54 N.W. 187, where two jurors had visited the scene of the accident, the court said:
In Skinner v. Cron, 206 Iowa, 338, 220 N.W. 341, 342, the court said:
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...Eckel v. Breeze, 221 Or. 572, 352 P.2d 460 (1960); Saunders v. A. M. Williams & Co., 155 Or. 1, 62 P.2d 260 (1936); Schneider v. Moe, 151 Or. 353, 50 P.2d 577 (1935); Frank v. Matthiesen, 115 Or. 349, 236 P. 754 (1925); But see, State v. McKiel, 122 Or. 504, 505, 259 P. 917 (1927).3 Eckel v......
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...280 S.W. 1057; Downs v. Fossey, 144 Kan. 456, 61 P.2d 875; Headington v. Central Building Co., 141 Kan. 338, 41 P.2d 1040; Schneider v. Moe, 50 P.2d 577; v. Adams County, 113 Neb. 377, 203 N.W. 544; Aldrich v. Wetmore, 52 Minn. 164, 53 N.W. 1072; Pierce v. Brennan, 83 Minn. 422, 86 N.W. 45;......
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