Walls v. Clark

• Decision Date: 15 January 1969
• Citation: 252 Or. 414,449 P.2d 141
• Parties: Eleanor WALLS, Respondent, v. Rodney CLARK and Shirley Clark, husband and wife, and Frank Wells, Defendants, and Mary Wells, Appellant.
• Court: Oregon Supreme Court

Page 141

449 P.2d 141

252 Or. 414

Eleanor WALLS, Respondent, v. Rodney CLARK and Shirley Clark, husband and wife, and Frank Wells, Defendants and Mary Wells, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton Oct. 30, 1968.

Decided Jan. 15, 1969.

Robert W. Collins, Pendleton, argued the cause for appellant. On the briefs were Fabre, Collins & Ehlers, Pendleton.

Lawrence B. Rew, Pendleton, argued the cause for respondent. With him on the brief were Corey, Byler & Rew, Pendleton.

Before McALLISTER, P.J., and SLOAN, O'CONNELL, GOODWIN, DENECKE, HOLMAN and MENGLER, JJ.

HOLMAN, Justice.

This is an action to recover for personal injuries suffered in an automobile accident. A judgment was rendered against the defendant Mary Wells alone, from which she appeals.

The accident occurred on Highway 30 west of Pendleton. The traffic moving easterly toward Pendleton was heavy because it was the morning of the Westward Ho parade which was part of the Pendleton Roundup. All vehicles involved were traveling in this direction. The scene of the accident was west of the brow of a hill on an ascending straight stretch of road. Plaintiff contended that a vehicle operated by the defendant, Mary Wells (hereinafter referred to as defendant), overtook and passed part of a continuous line of traffic moving toward Pendleton when it was met by a truck going in the opposite direction as it came over the brow of the hill. It was claimed this forced the overtaking vehicle back into the continuous line of traffic causing those cars behind to rapidly slacken speed which caused four of them, which were some distance back in line, to become involved in successive rear-end collisions. Plaintiff was a passenger in the third car involved which was operated by her husband. The defendants Clark were the operators of the fourth vehicle, the one which rear ended the vehicle in which plaintiff was riding.

Defendant first contends that the court erred in allowing the attorney for the defendants Clark to ask for and receive an answer from the investigating police officer to the effect that plaintiff and her husband told the officer that the accident was caused by the vehicle operated by defendant and said nothing about any culpability on the part of the Clarks. Defendant argues the testimony was hearsay. The questioned statements of the plaintiff were hearsay, self-serving and inadmissible in the action against defendant, but admissible as admissions of a party in the action against the Clarks. The statements were inconsistent with plaintiff's contention that the Clarks were at fault and as such were admissible upon behalf of the Clarks. Haltom v. Fellows, 157 Or. 514, 522, 73 P.2d 680 (1937). The statement made by plaintiff's husband was not objected to by her but, rather, she agreed with it. Her acquiescence to her husband's statement was similarly admissible as an admission of a party. Evidence admissible as to one of two joint defendants but not as to the other is not thereby rendered inadmissible. 29 Am.Jur.2d 311, Evidence § 262. Defendant had the right to request an instruction that the evidence should not be considered as to her, but she did not request such an instruction. Where evidence is admissible for a limited purpose only, it is not the duty of the judge to instruct the jury as to such purpose unless requested to do so. Foster v. University Lumber Co.,65 Or. 46, 65, 131 P. 736 (1913); Daggett v. Atchison, T. & S.F. Ry. Co.,48 Cal.2d 655, 313 P.2d 557, 564, 64 A.L.R.2d 1283 (1957).

Defendant next contends, through various assignments of error, that there was no evidence that her passing of the vehicles caused the collision which resulted in plaintiff's injuries. The following is part of the testimony relative to the density of the traffic by a witness who was a passenger in a car following those involved in the collision:

'Q And how many cars were in front of the automobiles that were involved in the accident?

'A I don't know.

'Q Did they extend clear over the rise in the hill?

'A Yes. There was cars, just as a solid line of cars.

'Q As far as you could see?

'A Yes.'

A witness who was the operator of one of the vehicles in the collision testified relative to the manner in which defendant operated her car as follows:

'Q I just want to know what you saw. What did you see that red and white Cadillac do when the P.I.E. truck came over the...