Weygandt v. Bartle

• Decision Date: 19 March 1918
• Citation: 88 Or. 310,171 P. 587
• Parties: WEYGANDT v. BARTLE. [*]
• Court: Oregon Supreme Court

171 P. 587

88 Or. 310

WEYGANDT v. BARTLE. ^[*]

Supreme Court of Oregon

March 19, 1918

Department 2.

Appeal from Circuit Court, Coos County; G. F. Skipworth, Judge.

Action by L. C. Weygandt against Ira B. Bartle. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant appeals from a judgment for $750 damages, based upon a jury verdict. The gist of the complaint is that on December 30, 1914, while the plaintiff was lawfully walking along Railroad avenue, a regularly traveled public highway used by pedestrians in the city of North Bend, Coos county Or., the defendant carelessly ran his automobile onto him injuring him; that the defendant at the time was operating his car at a very high and unlawful rate of speed so that he was unable to control and guide it properly, and ran against plaintiff without sounding his horn or giving him any warning; and that defendant was driving at an unsafe rate of speed in excess of 25 miles an hour in violation of an ordinance of the city. The answer denies the averments of the complaint except as therein stated, and asserts in substance that defendant at the time was operating his car in a careful manner, and that plaintiff without any reason carelessly failed to observe his approach and attempted to cross directly from one side of the thoroughfare to the other, and that when he heard the approach of the auto he attempted to retrace his steps and came in contact with it; that, upon observing the plaintiff, defendant immediately turned his machine away from him, cut off the power, and applied the brakes; that the accident was unavoidable as far as he was concerned and was caused by the negligent acts of the plaintiff. The reply put in issue the material portions of the new matter of the answer.

C. F McKnight, of Marshfield (J. P. Brenn, of North Bend, on the brief), for appellant. John D. Goss, of Marshfield (J. C Kendall and H. S. Murphy, both of Marshfield, on the brief), for respondent.

BEAN J. (after stating the facts as above).

The first error assigned is the refusal of the court to grant defendant's motion for a nonsuit made at the close of plaintiff's evidence. After the denial of the motion, defendant introduced evidence in his own behalf. It is contended by defendant's counsel that according to the case of Woods v. Wikstrom, 67 Or. 581, 590, 135 P. 192, the testimony on the part of defendant should not be considered in reviewing the ruling as to the nonsuit. In Trickey v. Clark, 50 Or. 516, 519, 93 P. 457, the rule was announced by Mr. Chief Justice Bean, following the holding in Bennett v. N. P. Ex. Co., 12 Or. 49, 6 P. 160, that, in determining questions arising on a motion for a nonsuit, consideration will be given to the entire testimony; that if there is a want of sufficient evidence to be submitted to the jury when plaintiff rests his case, if defendant afterwards supplies the omission, the ruling on the request for a nonsuit will not be disturbed. That doctrine has been adhered to in numerous cases, and is our guide now. Jennings v. Trummer, 52 Or. 149, 96 P. 874, 23 L. R. A. (N. S.) 164, 132 Am. St. Rep. 680; Dryden v. Pelton-Armstrong Co., 53 Or. 418, 421, 101 P. 190; Crosby v. Portland Ry. Co., 53 Or. 496, 502, 100 P. 300, 101 P. 204; Taylor v. Taylor, 54 Or. 560, 568, 103 P. 524; Morrison v. Franck, 59 Or. 429, 435, 110 P. 1090, 117 P. 308; Vanyi v. Portland Flouring Mills Co., 63 Or. 520, 534, 128 P. 830; Hofer v. Smith, 65 Or. 145, 148, 129 P. 761; Patton v. Women of Woodcraft, 65 Or. 33, 36, 131 P. 521; Caraduc v. Schanen-Blair Co., 66 Or. 310, 313, 133 P. 636; Oberstock v. United Rys. Co., 68 Or. 197, 204, 137 P. 195; Roundtree v. Mt. Hood R. Co., 168 P. 61. In Harding v. Oregon-Idaho Co., 57 Or. 34, 42, 110 P. 412, in regard to the rule referred to, Mr. Justice Slater said: "There can be no question about the principle enunciated." It is not a matter of importance as to who introduced the evidence contained in the record. Cunningham v. Friendly, 70 Or. 222, 230, 139 P. 928, 140 P. 989. The testimony in the record tends to show that on the night of the accident at about 10:30 p. m. plaintiff, Weygandt, was proceeding along the right side of the planked highway to his work on a night shift as a member of the shore gang of a dredge. There was no sidewalk on the roadway. It was planked 18 feet in width and was used constantly by both vehicles and pedestrians and was the main traveled thoroughfare leading from Marshfield to North Bend. The place where the accident occurred was within the city limits of North Bend and known as Railroad avenue. The city maintained street lines and repaired the street. There is a sharp curve at the point which defendant's car was rounding when it struck plaintiff. It was in December when the road was wet and slippery; it was a "greasy road," a dangerous97 place. Defendant's car was a two-seated one. There were six people on the car; one on the seat with defendant who was driving, one standing on each side, and two hanging on the back. It was a dark, misty night, and there was quite a bit of moisture on the windshield. The speed of the auto was estimated at from about 20 to 25 miles an hour. Defendant states: "I ran at that time 20 miles an hour--15 or 20 miles an hour." As to the happening of the accident the testimony was, in substance, as follows: Plaintiff's witness Putnam testified thus:

"We got around the curve, and we hit Mr. Weygandt, and then just about the time, or just a little bit before we hit him, Mr. Bartle kind of went kind of diagonal across the road, and when he got to the other side he tried to straighten up, and the rear end of the car kind of slued off from the plank, and we went ahead probably 75 or 100 feet, something of that matter; I didn't measure it, but it was a short distance, and we stopped."

Defendant's witness Standish described the accident thus:

"I was looking ahead, I was on the outside of the car, I had my head on the outside, and I had a perfect view, and was watching the light as it shone on the road, and all at once I saw a man, and I called to the Doctor, 'There is a man there.' He was on the right-hand side of the road, and he was just in the circle of the lights, from the car. The Doctor didn't do anything but shove the car right over, or pulled it to the left, and I hung on because I was a little afraid that he would skid the way he turned there, and I lost sight of the man because he was on the other side of the car. Then I felt a jolt of the car, and I said, 'You hit him.' The Doctor kept on turning to the left until he was clear of the road. Before he got there, I jumped. * * *"

Defendant's version of the occurrence is as follows:

"Standish said, 'There is a man,' and I turned the engine off, and I began to turn to the left, and I tried to find him, and I could not see any man in the light, and when I did see him he was in front of the right light. He was not 15 feet away with his head down, and his dinner bucket in his hand. The wind was blowing from the north, and he turned right square around in the road, faced me, and gave a little jump to the side, and the only place that the car hit him was on the top of the fender, and that is what hit him in the side right here. * * * The first thing he asked me, he said, 'Couldn't you see me?' and I said: 'Yes, I could see you, but not quick enough to miss you.' "

Plaintiff testified that he heard no horn or warning as the car approached him from behind and struck him; that "I said to Dr. Bartle, 'My God, couldn't you see me coming?' and he said, 'Yes, I could see you, but I could not keep from striking you.' "

We cannot say there was no evidence to support a verdict; therefore we are inhibited from disturbing the same. Section 3, art. 7, Const. The jury might reasonably conclude from the evidence, and apparently did, that, taking into consideration the time and place and the prevailing circumstances, the defendant was driving his car at a greater speed than was reasonable and proper, having regard to the safety of the public; that he did not have proper control of the machine so as to stop the same or slacken the speed sufficiently to avoid striking the plaintiff, who was making a desperate leap to escape the car and within a reasonable time would have done so. See Motor Vehicle Law, Laws of Oregon 1911, p. 267, §§ 16, 17. This act provides that every vehicle shall be run at a rate of speed at no time greater than is reasonable and proper, having regard to the safety of the public, the traffic, and use of the street or highway. Ordinance No. 185 of the city of North Bend makes practically the same provision as to the speed of autos on all streets, avenues, and public highways within that city. The deductions to be drawn from the evidence are for the jury, and not for the court. The testimony clearly tended to support the averments of the complaint. The determination upon the motion for a nonsuit cannot be disturbed.

Over defendant's objection and exception, plaintiff was permitted to show that he had been promised an increase in wages, and that owing to the injury complained of he was incapacitated to work; that after the injury he was promoted, but was unable on account of the hurt to do the labor. The rule is stated in 13 Cyc. p. 204bb, thus:

"Where by virtue of the contract of employment plaintiff will, if found satisfactory, be promoted or given an increase of salary within a stipulated or reasonable time, this fact is admissible on the question of damages."

See Bryant v. Omaha, etc., Co., 98 Iowa, 483, 67 N.W 392; St. Louis, etc., Ry. Co. v. Sweet, 60 Ark. 550, 31 S.W. 571; Sou. P. v. Ward, 208 F. 385, 392, 125 C. C. A. 601. The damages awarded plaintiff were not excessive. There was no prejudicial error in such...