Sherrard v. Werline

• Decision Date: 13 June 1939
• Citation: Sherrard v. Werline, 162 Or. 135, 91 P.2d 344 (Or. 1939)
• Parties: SHERRARD <I>v.</I> WERLINE ET AL.
• Court: Oregon Supreme Court

162 Or. 135

91 P.2d 344

SHERRARD

v.WERLINE ET AL.

Supreme Court of Oregon.

Argued February 9, 1939.

Affirmed June 13, 1939.

Appeal and error — Nonsuit — Directed verdict

1. In considering whether defendants' motions for nonsuit or for a directed verdict should have been granted in action for injuries sustained by pedestrian who was struck by defendants' automobile, the supreme court was compelled to assume the truth of facts supported by substantial evidence presented by pedestrian.

Automobiles — Pedestrian — Due care

2. A pedestrian proceeding across street on crosswalk was required to employ due care for the protection of his own safety and was required to avoid conduct which would make it impossible for motorists operating their automobiles with reasonable care to avoid striking him.

Automobiles — Pedestrian — Rights

3. A pedestrian crossing street on crosswalk had right to assume, in absence of information to the contrary, that all automobiles would conform to the requirements of the law and would be operated in a prudent manner, and he had a right to believe, until indications to the contrary appeared, that approaching vehicles would permit him to pass in safety.

Automobiles — Pedestrian — Right of way

4. A pedestrian crossing street on crosswalk having the right of way under statute could assume that approaching motorists would yield the right of way to him, but he had no right to engage in the assumption if it became evident that the right of way would not be yielded, and at that point it would become incumbent on him to look out for his own safety.

Automobiles — Jury question

5. Whether pedestrian was struck by defendants' automobile when he was on the east half of the street on which automobile was wrongfully traveling was for jury.

Automobiles — Pedestrian — Crossing street

6. A pedestrian about to cross a street must make reasonable observations along the course of the street for approaching automobiles, and that duty continues so long as danger is present.

Automobiles — Contributory negligence

7. Contributory negligence of pedestrian, who had seen defendants' automobile approaching in the distance on dark, drizzly evening, started to cross street on crosswalk, and retreated before stepping over yellow line into west half of street when he saw

automobile again, was for jury in action for injuries sustained when pedestrian was struck by automobile.

Evidence — Automobiles — Speed — Brakes

8. In pedestrian's action for injuries sustained when struck by defendants' automobile, hypothetical question propounded to state police captain concerning relationship between distance an automobile travels after brakes have been applied and speed of automobile was proper, where there was evidence concerning distance between place where defendants' automobile was observed immediately after accident and place of accident and evidence that brakes had been applied.

Evidence — Hypothetical questions

9. In pedestrian's action for injuries sustained when struck by defendants' automobile, hypothetical question propounded to state police captain concerning relationship between distance an automobile travels after brakes have been applied and speed of automobile was not required to be based on that part of the testimony most favorable to defendants.

Evidence — Expert's opinion

10. A party is entitled to an expert's opinion on any combination of facts that he may choose.

Evidence — Hypothetical questions

11. Hypothetical questions may be based on data which it may reasonably be assumed the jury will accept as true, and, if the premise on which the question is based is rejected by the jury as untrue, the expert's opinion will be disregarded.

Automobiles — Instructions — Emergency

12. In pedestrian's action for injuries sustained when struck by defendants' automobile, instruction on sudden peril or emergency doctrine as applied to pedestrian was proper, where complaint alleged that pedestrian was struck before he could sufficiently retrace his steps out of automobile's course, answer pleaded contributory negligence, and reply denied allegations concerning contributory negligence.

Trial — Instructions — Sudden peril

13. In pedestrian's action for injuries sustained when struck by defendants' automobile, instruction on sudden peril or emergency doctrine as applied to pedestrian was proper, even though averment in complaint that pedestrian was struck before he could sufficiently retrace his steps out of automobile's course should have been made in reply to answer which pleaded contributory negligence, where no motion was filed against averment, no difficulty was experienced during trial, and instruction was based on testimony received without objection.

Trial — Instructions

14. The purpose of instructions is to state to the jury the principles of law governing the facts revealed to the jury by the evidence.

Trial — Instructions — Automobiles

15. In pedestrian's action for injuries sustained when struck by defendants' automobile, instruction that person driving an automobile is driving a machine capable of doing great damage if not handled carefully and prudently and that it takes more care on the part of a driver of an automobile to amount to reasonable care than is required of a pedestrian walking across highway was not erroneous in view of other instructions stating that both parties must exercise reasonable care.

Trial — Instructions — Right of way

16. In pedestrian's action for injuries sustained when struck by defendants' automobile, refusal of defendants' requested instruction that a pedestrian favored by the right of way must nevertheless employ due care was not erroneous in view of other instructions given.

Trial — Instructions — Proximate cause

17. In pedestrian's action for injuries sustained when struck by defendants' automobile, instruction that it was sufficient if one of several allegations of negligence which was a proximate cause of injury was proved was not erroneous, even though it was alleged that no signal of approach of automobile was given, where it was charged that to warrant recovery it must appear that specific act of negligence under consideration and proved by a preponderance of the evidence was the proximate cause of injury and that duty to sound warning was owed only if a person of ordinary prudence under circumstances immediately preceding accident would have given a signal.

Costs — Penalty

18. On defendants' appeal from judgment for plaintiff in personal injury action, the supreme court would not impose statutory penalty, even though no error was found and judgment had to be affirmed, and award did not seem to be excessive, where it could not be said that appeal was taken without probable cause.

  Pedestrian's duty as regards looking for automobiles when
                crossing street or highway, note, 73 A.L.R. 1073. See, also, 5
                Am. Jur. 759
                  42 C.J. Motor Vehicles, § 922
                

Department 1.

Appeal from Circuit Court, Polk County.

ARLIE G. WALKER, Judge.

Action for personal injuries by William D. Sherrard against John Werline, by B.F. Swope, his guardian ad litem, and another.From a judgment for plaintiff, defendants appeal.

AFFIRMED.

Oscar Hayter, of Dallas, for appellants.

Bruce Spaulding, of Dallas, for respondent.

ROSSMAN, J.

This is an appeal by the defendants from a judgment of the circuit court, based upon the verdict of a jury and entered in an action which was predicated upon a charge that the defendant, John Werline, the eighteen-year-old son of the other defendant, Eunice Werline, so negligently drove a car, owned by the latter, that it ran into and injured the plaintiff who at the time was crossing a public street on foot.

The defendants present seven assignments of error.The first is based upon the denial of their motion for a nonsuit; the second upon a ruling which denied their objections to a hypothetical question; the third upon the denial of their motion for a directed verdict; the fourth, fifth and sixth upon instructions given to the jury; and the seventh upon the court's refusal to give an instruction requested by them.

Upon this appeal the defendants do not contest the plaintiff's injury, the defendants' negligence, and the family use to which the car was being applied.The first and third assignments of error are, therefore predicated upon the defendants' charges that the plaintiff was guilty of contributory negligence.

The accident occurred November 14, 1937, at 5:45 p.m., on North Main Street in the city of Independence.The night was dark, a drizzling rain was falling, the pavement was wet, the street lights were burning, and automobiles were using their lights.The course of Main street, which carries a fair volume of traffic, is north and south.The street is 80 feet wide with the central 22-foot area paved with roughtop material.Beyond the pavement on both sides are gravel shoulders which extend to the curb or sidewalk line.At the place in Main street with which we are concerned, Oak street, 60 feet wide, enters from the west, but does not cross Main street.The intersection is illuminated with an overhead street light which was burning at the time of the accident.

1.So far the facts are free from dispute.From now on we shall state many that the defendants do not concede, but, since substantial evidence presented by the plaintiff supports them, we are compelled, for the purposes of the motions for a nonsuit and a directed verdict to assume their truth.

At the hour above mentioned the plaintiff reached the aforementioned intersection in an automobile driven by one Floyd Nelson, which stopped on the gravel shoulder of the east side of Main street opposite the south curb of Oak street.The south sidewalk of Oak street does not cross Main street, but the car driven by Nelson stopped in such a position that after the plaintiff had alighted from it and had walked around its rear he was directly east of the sidewalk on the south...