Willhite v. Freed

• Decision Date: 02 June 1931
• Citation: 137 Or. 1,299 P. 691
• Parties: WILLHITE v. FREED. [a1]
• Court: Oregon Supreme Court

299 P. 691

137 Or. 1

WILLHITE v. FREED. ^[a1]

Supreme Court of Oregon

June 2, 1931

Department 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Leland Willhite, a minor, by C. F. Willhite, his guardian ad litem, against Elise O. Freed. Judgment for plaintiff, and defendant appeals.

Affirmed.

At about 11 o'clock on the morning of June 5, 1930 plaintiff, a minor of the age of nineteen years, was driving a light automobile truck (laundry wagon) in a southwesterly direction on Hawthorn terrace, in Portland. At the same time the defendant was driving a Buick sedan in a northwesterly direction upon Terrace drive. These automobiles collided in the intersection of the highways mentioned. The plaintiff was thrown out of the truck and sustained injuries. This action based upon alleged negligence of the defendant, was instituted for plaintiff by his guardian ad litem, to recover damages because of such injuries. From a verdict in the sum of $1,000 in favor of plaintiff and the judgment based thereon, defendant appeals.

ROSSMAN J., dissenting.

Elmer Johnson, of Portland, for appellant.

Bert W Henry, of Portland, for respondent.

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

Errors are assigned because of the court's refusal to strike out plaintiff's testimony to the effect that immediately after the collision a bystander stated to defendant in plaintiff's presence that plaintiff had the right of way; because of the court's refusal to grant an involuntary nonsuit; because the court denied defendant's motion to dismiss the jury and call a new panel on account of alleged improper argument by plaintiff's counsel; because of the court's refusal to give a certain instruction requested by defendant and hereinafter set out; because of the giving by the court of an instruction hereinafter quoted; and because of the refusal of the court to grant a new trial.

The plaintiff testified that he was thrown out of the automobile by the impact, that after he regained his feet he walked back and was standing a short distance from the curb. Then these questions were asked and answers given:

"Q. Was anybody there besides you and Mrs. Freed? A. Yes, some other gentleman. * * *

"Q. * * * Now, then, was there anything said by Mrs. Freed or this other gentleman there at the scene of the accident before they took you away? A. Yes, sir. * * *

"Q. Well, now, let us get this thing clear. Was there any talk there between this stranger and Mrs. Freed just after this accident? You can answer that by yes or no. A. Yes, sir.

"Q. Did you hear it? A. Yes, sir.

"Q. And this other gentleman heard it? A. Yes, sir.

"Q. Now what was said at that time? * * * A. She wanted to know why I didn't stop and I told her because I had the right of way and I was feeling pretty badly and the fellow said 'never mind about the accident, you had better take' me to the hospital.

"Q. Who was it said that you had the right of way? A. This gentleman. * * *

"Q. Leland, when this stranger said 'The boy had the right of way and he is feeling badly and you had better get him to the hospital,' what did she say? A. She said 'I am not dressed fit.'

"Q. Did she say anything about who had the right of way? A. No, she didn't."

(That no suggestion of indifference on defendant's part to plaintiff's misfortune may appear, it should be noted that the defendant was on her way to a private swimming pool and was attired in a coolie coat worn over her bathing costume, with her feet incased in rubber shoes; and, further, that despite reluctance because of this attire defendant immediately took plaintiff in her car to the hospital.)

Seasonably by appropriate objection supplemented by timely motions to strike, defendant made a record rendering it necessary for this court to determine whether, in permitting the foregoing testimony to be given, the trial court committed error.

Defendant testified that she could not remember what the gentleman referred to said to her, if anything, about who had the right of way; that she requested him to help plaintiff into her car, which he did; that at her request he rode with them to the hospital; that on that journey his attitude and conversation were offensive to her. She also testified that, still being reluctant to appear in the garb in which she was attired, she requested him to assist plaintiff into the hospital, which he declined to do; and then that she took plaintiff into the hospital with his help. No error was committed in submitting plaintiff's testimony as to the alleged statement of this bystander to the jury.

The motions for nonsuit and for a directed verdict are based upon the alleged absence of proof that defendant was negligent or that defendant's negligence, if any, was the proximate cause of the collision. Plaintiff testified that after he approached the intersection he observed defendant's car coming at a speed of 25 miles an hour. It is conceded that plaintiff was on the right of defendant. Plaintiff testified that he was driving at approximately fifteen miles an hour. The testimony of the mechanic who repaired plaintiff's car tended to corroborate plaintiff's version of the collision. No error was committed by the court in submitting the case to the jury. The placing on the map of a cross at the alleged place of contact and the letters A and B indicating the alleged location of plaintiff and defendant when plaintiff first saw defendant's car was a matter for the jury to consider...