Smith v. Pacific Northwest Public Service Co.

• Decision Date: 20 February 1934
• Citation: 146 Or. 422,29 P.2d 819
• Parties: SMITH v. PACIFIC NORTHWEST PUBLIC SERVICE CO. et al. [*]
• Court: Oregon Supreme Court

29 P.2d 819

146 Or. 422

SMITH v. PACIFIC NORTHWEST PUBLIC SERVICE CO. et al. ^[*]

Supreme Court of Oregon

February 20, 1934

Department 2.

Appeal from Circuit Court, Multnomah County; James T. Brand, Judge.

Action by F. W. Smith against Pacific Northwest Public Service Company and another. From a judgment for plaintiff against named defendant alone, such defendant appeals.

Affirmed.

This is an action for damages for personal injuries. The Pacific Northwest Public Service Company (now Portland Electric Power Company), defendant, appeals from a verdict and judgment in favor of the plaintiff and against it alone and also from a verdict and judgment against the plaintiff and in favor of the Consolidated Freight Lines, Inc., one of the defendants.

A brief outline of the case is as follows: Plaintiff Smith was a passenger for hire on a street car of the Pacific Northwest Public Service Company on October 28, 1931, about 10:30 o'clock a. m., when the street car was involved in an accident with a truck and trailer owned and operated by the defendant Consolidated Freight Lines, Inc. The accident occurred at the intersection of Sixteenth and Raleigh streets in the city of Portland, county of Multnomah, Or. Both streets are paved and are thirty-six feet in width from curb to curb and sixty feet in width from property line to property line. Sixteenth street runs in a general northerly and southerly direction, and Raleigh street runs in a general easterly and westerly direction. The sidewalks are twelve feet in width on each side of the streets; a store building is located on the southwesterly corner of the intersection even with the property line on both streets. The appellant maintains double street car tracks on Sixteenth street. The street car involved, and in which plaintiff was a passenger was proceeding north on Sixteenth street. The Consolidated Freight Lines truck and trailer were being driven east on Raleigh street. The street car involved is forty-five feet in length and weighs approximately 36,000 pounds. The truck and trailer involved are approximately fifty feet in length over all, and at the time of the accident the truck and trailer together with the load weighed 54,000 pounds.

The plaintiff Smith alleged that he was a passenger on the street car on October 28, 1931, when the street car came into collision with the motortruck and trailer being operated by the defendant Consolidated Freight Lines and as a result was injured. "He charges the following acts of negligence to wit:

"'(a) That said defendants at said time and place carelessly and negligently failed to keep a proper lookout for traffic using said streets;

"'(b) That said defendants at said time and place carelessly and negligently operated said vehicles at a high, dangerous and reckless rate of speed;

"'(c) That said defendants at said time and place carelessly and negligently failed to keep their vehicles under proper control.'

"He alleged that as a result of the negligence charged, he suffered the following injuries:

"'(A) Plaintiff suffered a severe hemorrhage of his spinal cord, which has resulted in paralysis of his right side;

"'(b) The muscles, ligaments and tendons of plaintiff's head, back, neck and shoulders were severely injured and bruised;

"'(c) That as a result of said injuries plaintiff's right hand is weak and he does not have a firm grip of the same."'

And that as a result of such injuries he suffered great physical pain and mental anguish and in the future will suffer great physical pain and has been rendered extremely nervous, all of said injuries being of a permanent nature, to his general damage in the sum of $40,000.

The appellant denied any negligence on its part and affirmatively alleged as follows:

"That on October 28, 1931, this defendant was lawfully, carefully and prudently operating its street-car in a northerly direction upon Sixteenth Street, approaching, entering and crossing the intersection of Sixteenth Street and Raleigh Street and said City of Portland; that the plaintiff was a passenger upon said street-car; that, as said street-car was being operated as aforesaid, approaching and crossing said intersection, the defendant Consolidated Freight Lines, Inc. a corporation, recklessly, carelessly and negligently operated its truck, with trailer, in an easterly direction on Raleigh Street in approaching and crossing said intersection and in such close proximity to said street-car that a collision occurred between said street-car and said truck and as a result of said collision the plaintiff claims some injury; that this defendant has no knowledge or information sufficient to form a belief as to the extent of the injuries of the plaintiff by reason of said collision, or as to whether or not the plaintiff was then and thereby injured to any extent, or at all, and for that reason denies that the plaintiff was injured to any extent, or at all, by said collision, and demands the proof thereof.

"That said collision and any resulting injuries to this plaintiff were solely and proximately caused by the negligence of the said defendant Consolidated Freight Lines, Inc., a corporation, in that its agent and representative then in charge of said truck and trailer was guilty of negligence in the operation of such truck and trailer, in that:

"1. He failed to maintain a reasonable lookout for the said approaching street-car;

"2. In approaching said intersection within 100 feet of the street railway tracks of the defendant, with the view of traffic on such railway tracks within a distance of 400 feet in either direction being obstructed, at a speed in excess of 15 miles per hour;

"3. After the said street-car had started across said intersection, he drove said truck upon the car tracks of the defendant in said intersection, in front of said oncoming street-car;

§§4. He failed to yield the right of way to said street-car;

"5. He was driving and operating said truck and trailer at an unreasonable and excessive rate of speed under the circumstances there attendant, and failed to have said truck and trailer under reasonable control in approaching said intersection of said street-car tracks;

"6. He failed to exercise such reasonable care as would ordinarily have been expected from a reasonably prudent truck driver under the circumstances there attendant."

The defendant Consolidated Freight Lines, Inc., denied any negligence on its part. The affirmative matter in appellant's answer was denied by plaintiff in an appropriate reply.

Cassius R. Peck, of Portland (Griffith, Peck & Coke, of Portland, on the brief), for appellant.

Paul R. Harris, of Portland (Davis & Harris, of Portland, on the brief), for respondent Smith.

E. L. McDougal, of Portland, for respondent Consolidated Freight Lines.

There are four assignments of error predicated upon the refusal of the court to give certain instructions requested by appellant.

The original bill of exceptions, after quoting each requested instruction, shows as follows: "The court refused to instruct the jury as requested in the foregoing instruction, and an exception was duly allowed to the refusal of the court to instruct the jury as requested by said defendant in said instruction."

Some time after the bill of exceptions was settled and allowed, on motion of plaintiff, who deemed that the bill of exceptions was not in accordance with the transcript of the record, the bill of exceptions was amended by order of the trial court by striking out the word "duly" as above quoted and so as to read, after setting forth each of the requested instructions, as follows:

"The defendant, Pacific Northwest Public Service Company (now Portland Electric Power Company) excepted to the refusal of the court to give said instruction to the extent and in the manner as evidenced by the following transcript record, pages 323, 324, and said exception was allowed to the extent and in the manner evidenced by said transcript record. Said record is as follows:

"'Mr. Peck: I would ask a general exception to the refusal of the court to give the instructions requested by the defendant, Pacific Northwest Public Service Company, and to the modification of those instructions as requested and given.

"'The court: Yes, you can have that."'

The appellant requested some thirty-seven instructions, only four of which requests are contained in the bill of exceptions.

The plaintiff and respondent Consolidated Freight Lines, Inc., maintains that the exception taken by the appellant is only an exception to the refusal to charge the entire series of instructions, and is not sufficient unless each one of the requested instructions is of itself sound. In other words, the respondents urge that the appellant did not except to the refusal of the court to give each of the instructions requested by the appellant.

The contention of the appellant is that it was the intention of the appellant, and so understood by the court and the parties, to except to the refusal of the court to give each instruction, and that in any event the settlement and allowance of the bill of exceptions is conclusive upon the question.

It will be noticed that the court allowed an exception to the refusal of the court to give each of the requested instructions set out in the bill of exceptions.

Section 2-704, Oregon Code 1930, provides: "The statement of the exception, when settled and allowed, shall be signed by the judge and filed with the clerk and thereafter it shall be deemed and taken to be a part of the record of the cause." The declaration of the trial court by a settlement and allowance of the bill of exceptions is conclusive upon this court.

In Allen v. Standard Box & Lbr. Co., 53 Or. 10, 16, 96 P. 1109, 1111, ...