Spence v. Rasmussen

• Decision Date: 24 January 1951
• Citation: 190 Or. 662,226 P.2d 819
• Parties: SPENCE v. RASMUSSEN et al.
• Court: Oregon Supreme Court

Page 819

226 P.2d 819

190 Or. 662

SPENCE v. RASMUSSEN et al.

Supreme Court of Oregon, En Banc.

Jan. 24, 1951.

Paul W. Haviland and Hugh B. Collins, of Medford, argued the cause for appellant. With them on the brief was George W. Neilson, of Medford.

Edward Branchfield, of Medford, argued the cause for respondents. With him on the brief were George M. Roberts and G. W. Kellington, of Medford.

TOOZE, Justice.

This is an action for damages for the death of Alvia Joseph Spence, plaintiff's intestate, resulting from the alleged negligent operation by defendants of a motor truck. The defense of contributory negligence was interposed. The case was tried to a jury, resulting in a verdict and judgment in favor of defendants. Plaintiff appeals.

The defendants George P. Rasmussen, Mary Lee Rasmussen, Allyn A. Monroe, and Dorothy F. Monroe are copartners, engaged in the retail lumber business at Ashland under the assumed name of 'Bellview Lumber Company,' and are owners of the Dodge motor truck involved in the accident hereafter described; defendant Ralph Hames was, at the time of the accident, an employee of the lumber company and engaged in the operation of said motor truck for and on behalf of his employers.

The accident occurred January 26, 1948, at about the hour of 6:10 a. m., a short distance west of Gold Hill, in Jackson County, Oregon, on U. S. highway 99, more commonly known as the Pacific highway. The Pacific highway runs generally north and south through the state of Oregon, but at the place of the accident, runs almost directly east and west. The weather was rectly east and west. The sun rose at 7:20 a. m. that day. At the place of the accident the paved portion of the highway is approximately 21 feet in width with the center line clearly marked with a yellow stripe. At the time of the accident, Alvia Joseph Spence was riding a bicycle in a westerly direction (toward Grants Pass from Gold Hill) along said highway. At the same time, defendant Hames was operating said Dodge motor truck in the same direction along said highway, approaching said bicycle from the rear. Both bicycle and motor truck were being operated on the right-hand side of the center line of said highway in the direction they were proceeding.

Alvia Joseph Spence, who was then 58 years of age, was engaged in delivering morning newspapers for his son who was the Oregon Journal carrier in Gold Hill. He was carrying the papers in a white canvas bag hung on the front of the bicycle. He was dressed in a dark Mackinaw and overalls. The bicycle was equipped with an ordinary bicycle front lamp (electric) and with a red reflector on the rear.

A comparatively short distance west of Gold Hill is located the Lazy Acres Motel on the south side of the highway, and at the entrance to the motel there is a sign pointing thereto.

Immediately prior to the accident, one John Spurgeon who was driving a diesel type freight truck and trailer in an easterly direction toward Gold Hill on said highway met and passed Mr. Spence near said motel sign. At that time the defendants' truck was about 200 feet behind the bicycle. The lights on defendants' truck were on dim, and for some little distance before meeting Spence, Spurgeon also had his lights dimmed.

When within 100 feet of the point where he passed Spence, Spurgeon saw the bicycle, his attention being first attracted by the white bag on the front of the vehicle. Spurgeon testified that the front light on the bicycle was not burning. He also said that the bicycle was being operated on its own right-hand side of the highway somewhat closer to the center line than to the right-hand edge of the pavement. After passing the bicycle, Spurgeon also met and passed defendants' truck. Spurgeon testified that he was traveling about 40 miles per hour and estimated the speed of defendants' truck as the same.

Within a very short distance after passing the Spurgeon truck and trailer, the defendants' truck struck the bicycle, throwing Spence over he left front fender and to the pavement, instantly killing him, and dragging the bicycle underneath for some little distance. Defendant Hames did not see Spence or the bicycle until the instant of impact. As soon after the impact as he could, Hames set the brakes on the truck, bringing the vehicle to a stop some 200 feet from the point of collision.

Frank Dupray, a state police officer stationed at Medford, in company with Carlos W. Morris, county coroner, reached the scene of the accident that morning at approximately 6:50 a. m. They made an examination of the place of accident and found and measured gouges in the pavement and skid marks in the path followed by the truck from point of impact to where it was stopped. They also found bits of white and red glass on the pavement and in the gouges. The truck was stopped some 104 feet beyond where Spence's body and the bicycle were lying, the body on the left-hand side of the highway, and the bicycle on the right. The evidence showed, however, that immediately after the collision Spence's body was lying across the center line of the highway and was carried to the side of the road.

The skid marks extended for a distance of 104 feet. Dupray testified: 'Q. What examination of the scene did you make prior to the point where the skid marks started on the highway, and what did you find? A. I found a series of gouges. There was a heavy gouge--about 108 feet from where the skid marks started there was a heavy gouge in the pavement, and from there down to where the skid marks started, about 108 feet, there were a series of gouges where the bicycle had apparently run back under the truck. [Latter part of answer stricken.]

'Q. You can't state what you think caused it. You say you found the gouges. Would you describe those gouges, as to whether you found any foreign materials in them or anything of that sort? A. There was maroon paint in some of the gouges.

'Q. Did you measure the distance those gouges were from the center line of the highway? A. Yes; I measured the distance. It was about 6 feet 9 inches from the center line to where the gouges were found in the pavement.

* * *

* * *

'Q. Did the gouge marks stop prior to the time the skid marks commenced? A. That's about where they stopped, about where the skid marks started.

'Q. Did you see any particles of the vehicles along the highway there? A. There were pieces of broken glass, little red particles of glass apparently from a reflector.

'Q. You can't say what you think it was from. State what they were as to size and color. A. They were small pieces of broken red glass and white glass.

'Q. Where did you notice those objects? A. They were strung along the path where the gouge marks were.'

The bicycle is in evidence as an exhibit. From an examination of this exhibit it appears that the lends of the front lamp is completely shattered, and the rear red reflector is practically demolished, though there remains bits of red glass under the outer rim of the reflector holder. The bicycle is painted a maroon color.

There is a dispute between the parties as to the exact position on the pavement of both bicycle and truck at the time and point of collision, but all agree that both bicycle and truck were on the right-hand side of the center line of the highway.

The contentions of plaintiff on this appeal are: (1) that the trial court erred in not permitting an inspection by plaintiff's counsel of certain photographs of the scene of the accident when the same were being identified by the photographer and in admitting such photographs in evidence; (2) that the trial court erred in denying plaintiff's motion to withdraw from the jury's consideration certain specifications of contributory negligence; and (3) that the trial court erred in giving certain instructions to the jury and in refusing to give others as requested in writing by plaintiff.

Inasmuch as the question of the right of plaintiff to inspect the photographs could not arise upon another trial, we do not deem it necessary to discuss the alleged error of the trial court in denying such inspection, except to say that plaintiff was well within her rights in demanding such inspection and her request should have been granted.

In 3 Wigmore, Evidence, 2452, § 1861, it is stated: 'For reasons of policy already considered (ante, § 1847, par. 4), the general rule suffers a virtual exception, well recognized at common law, where a party, having a document at the trial, uses it for any evidential purpose. Here it is no hardship to him, and it is a decided dictate of fairness, to require him to submit it for the opponent's inspection, even though the former has not yet technically and finally put it in evidence.' (Italics ours.)

Webster defines 'document' as follows: 'An original or official paper relied upon as the basis, proof, or support of anything else;--in its most extended sense, including any writing, book, or other instrument conveying information * * *.' (Italics ours.)

Photographs and pictures stand on the same footing as diagrams, maps, plans, etc. Conn v. Oregon Electric Ry. Co., 137 Or. 75, 86, 300 P. 342; 32 C.J.S., Evidence, § 709, p. 611.

A photograph is a 'document' within the rule announced by Mr. Wigmore, supra.

Furthermore, a photograph is a 'writing' within the meaning of § 4-714, O.C.L.A.

Funk & Wagnalls New Standard Dictionary defines a 'writing' as follows: '* * * the act or art of tracing or inscribing on a surface letters or ideographs * * *.'

In the same dictionary we find 'ideograph' defined as: 'A picture, symbol, or sign of an object * * *.' (Italics ours.)

In 71 C.J., Writing, 1635, § 3, the scope of the term 'writing' is stated thus: 'In its most frequent and most familiar sense the term 'writing' is applied to books, pamphlets, and the literary and scientific productions of authors; in law it is much more frequently used to denote legal instruments, such as deeds, agreements, memoranda,...