Vuilleumier v. Oregon Water Power & Ry. Co.

• Decision Date: 21 December 1909
• Citation: 55 Or. 129,105 P. 706
• Parties: VUILLEUMIER v. OREGON WATER POWER & RY. CO.
• Court: Oregon Supreme Court

105 P. 706

55 Or. 129

VUILLEUMIER v. OREGON WATER POWER & RY. CO.

Supreme Court of Oregon

December 21, 1909

Appeal from Circuit Court, Multnomah County; Thomas O'Day Judge.

Action by Alice Vuilleumier against the Oregon Water Power & Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

A.M Dibble (R.W. Wilbur, on the brief), for appellant.

C.M Idelman (Wm. C. Benbow, on the brief), for respondent.

Only errors of law can be considered on appeal, so the findings of fact and the question of excessive damages raised by a motion for new trial cannot be reviewed.

EAKIN, J.

This is an action to recover damages for personal injuries. Plaintiff alleges that on October 22, 1906, she was a passenger upon a car of the defendant at the time said car collided with another car of defendant, the collision being caused by negligence of the defendant; that, by reason of said collision, plaintiff was thrown violently out of her seat and upon the seat in front of her, crushing her arm shoulder, and body, striking and crushing her head, and causing her great physical pain and mental anguish, for which she asks damages in the sum of $10,000 and special damages on account of money paid for medical services, hospital expenses, medicine, and nursing in the sum of $1,000. She also alleges that she was a business woman, earning $75 per month; that her trade was that of a watchmaker and jeweler; that, by reason of said injuries, she was unable to work thereafter, to her damage in the sum of $825. The defendant suffered default for want of an answer to be entered against it, and thereupon the court proceeded to hear the proof and to assess the damages to which plaintiff was entitled, under the provision of subd. 2, § 185, B. & C. Comp., which provides that in actions sounding in tort, if no answer has been filed, the court, without the intervention of a jury, shall assess the damages which plaintiff shall recover; that the court may hear the proof itself, and the defendant shall not be precluded, by reason of his default, from offering proof in mitigation of damages. At the close of the evidence, and after the court had orally announced that he had assessed the damages at $3,000, plaintiff moved the court to make specific findings of fact as to the items and amounts of each, upon which the court allowed damages. This motion was denied by the court. Defendant also moved the court for a new trial for the reason that the evidence was insufficient to justify the judgment, and that the damages were excessive. The defendant appeals.

Error is assigned upon the refusal of the court to permit Mrs. Loveridge, who was a passenger on the same car at the time of the accident, to state whether or not from the force of the collision the glass in the front of the car was broken. The extent of the injury to the car was not material. It was not made an issue, and, the defendant's carelessness and plaintiff's injury being admitted, the only question was as to the amount of damage plaintiff sustained.

Error is also assigned upon the refusal of the court to permit Mrs. Loveridge, who went through the car after the accident, to state what she found as to any one being hurt. The record does not show what was sought to be proved by the answer, but, assuming that she would have answered that she saw no one who appeared to be injured, it would be immaterial, as plaintiff in her testimony does not claim to have received any injury that might be visible to the casual observer and says that she made no complaint at the time. Such evidence, then, would not tend to contradict her as to the manner in which she was thrown down or to the extent of her injuries.

Plaintiff's husband testified that on December 8th, Dr. Cable, his wife's physician, asked her this question, "Do you still suffer these pains," to which she answered "Yes." This was competent evidence under the rule that "the declarations of a party are received to prove his condition, ills, pains, and symptoms, whether arising from sickness or an injury by accident or violence." State v. Mackey, 12 Or. 158, 6 P. 648. To the same effect are Thomas v. Herrall, 18 Or. 549, 23 P. 497, and 16 Cyc. 1160. "The representations of...