Wills v. Petros

• Citation: 357 P.2d 394,225 Or. 122
• Parties: Katherine WILLS, Appellant, v. Panagiotis PETROS and James Petrou, Respondents.
• Decision Date: 10 November 1960
• Court: Supreme Court of Oregon

Page 394

357 P.2d 394

225 Or. 122

Katherine WILLS, Appellant, v. Panagiotis PETROS and James Petrou, Respondents.

Supreme Court of Oregon.

Submitted on Briefs Nov. 10, 1960.

Edwin J. Welsh, Portland, for appellant.

Cleveland C. Cory, Don H. Marmaduke and Hart, Rockwood, Davies, Biggs & Strayer, Portland, for respondents.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

WARNER, Justice.

This is an action by the plaintiff, Katherine Wills, against the defendants, Petros and Petrou, for damages claimed as injuries received as result of a collision between an automobile in which she was riding and one owned by defendant Petrou. From a judgment after trial by jury in favor of defendants, plaintiff appeals.

The automobile in which plaintiff was a passenger was owned and operated by her daughter, Barbara Wills.

The defendants are brothers who reside together. James Petrou owned the Buick automobile which on the day of the collision was being driven by his brother, the defendant Panagiotis Petros (hereinafter called Petros), while on a family errand.

The mishap occurred in the intersection of Southwest 16th Avenue and SouthwestTaylor Street in the city of Portland, about 5:00 p. m., December 20, 1958. The streets were very damp following a rain. Southwest 16th Avenue runs in a northerly and southerly direction and Taylor Street is a 'one-way' street for vehicular traffic running westerly and easterly.

The Wills' car at the time was traveling west on Taylor in the left center lane when struck from the left by defendant's car then enroute north on Southwest 16th Avenue, a 'two-way' street. According to Petros, his car was not exceeding a speed of 14 or 15 miles per hour. Barbara Wills claims that she was proceeding at a 'normal speed.' She entered the intersection from the right of the Petros Buick.

A building on the southeast corner of the intersection partially obscured the vision of the drivers until their vehicles neared the crosswalks of the streets upon which they were, respectively, traveling.

Miss Wills testified that she did not see the Petros Buick until her own car was entering the intersection and that the Buick was then about two car lengths south of the south line of the intersection. She then made an unsuccessful attempt to accelerate her speed to avoid the impending collision. Petros said he did not see the Wills car approaching or entering the intersection from his right until too late to apply his brakes.

The impact was violent. The Wills car was knocked sideways in a northwesterly direction and over the westerly curb line of Southwest 16th Avenue and a short distance north of the intersection's northwesterly corner.

An investigating police officer established the point of impact as 23 feet west of the east curb line of 16th Avenue and 10 feet north of the south curb line of Taylor Street.

The impact sprung open the right-hand door of the Wills car, throwing plaintiff from the car to the pavement and causing the injuries she sustained.

Subsequent to the entry of judgment plaintiff moved for a new trial. This was denied. In her motion plaintiff relied upon most of the errors hereinafter alleged.

Plaintiff assigns five errors. The first one relates to the failure of the court to give her requested instruction 14:

'You are instructed that sole proximate cause means the only proximate cause, and therefore if you find any negligence on the part of the defendants contributed in the slightest degree to the proximate cause of the collision, then the negligence, if any, of Barbara Wills, could not be the sole proximate cause, and the instructions I have given you regarding concurring negligence would apply to this case, and if the negligence of the defendants concurred with the negligence of Barbara Wills to proximately cause the collision and the injuries to the plaintiff, then you must find for the plaintiff and against the defendants.'

It is plaintiff's contention that the instruction given emphasized the defendants' theory of the case to the exclusion of that of plaintiff. We cannot agree.

The right of a litigant to have his theory of the case presented to the jury is unquestioned, but it is not error for the trial court to refuse to give a requested instruction even though the refused instruction constitutes an accurate statement of the law when the substance of the instruction given can be found in any other instructions given. Robbins v. Irwin, 1947, 180 Or. 667, 681, 178 P.2d 935; Hogan v. Mason Motor Co., 1930, 133 Or. 14, 17, 288 P. 200; Riley v. Good, 1933, 142 Or. 155, 161, 18 P.2d 222.

We find that after the court's instructions on usual and preliminary matters it carefully and comprehensively instructed the jury on all issues raised by the pleadings, including a definition of 'proximate cause,' to which plaintiff took no exception.

The court concluded its instruction on liability as follows:

'Now in connection with this question of negligence, you are instructed that Barbara Wills, the driver of the automobile in which plaintiff was a passenger was also under a duty to operate her car at a reasonable rate of speed and to maintain a proper lookout and to keep her automobile under proper control, as I have defined those terms for you, and therefore if you should find from the evidence in this case that Barbara Wills, the driver of the automobile in which the plaintiff was a passenger, was negligent and that such negligence on her part was the sole proximate cause of the accident, then plaintiff can not recover and your verdict should be for the defendants. In other words, if you should find from the evidence in this case that Barbara Wills was solely and entirely at fault for the happening of this accident the plaintiff is not entitled to prevail and recover from the defendants. However, if you should find from the evidence in this case that the defendant Panagiotis Petros was negligent in one or more of the particulars as set forth in plaintiff's complaint and that such negligence, if any, concurred or combined jointly with the negligence of Barbara Wills, if any, as the proximate cause of the accident, you should return your verdict in favor of the plaintiff, providing she sustained injuries and damages as a proximate result thereof, because the negligence, if any, of Barbara Wills, the driver of the automobile in which plaintiff was a passenger, can not be imputed or charged against this plaintiff.'

Plaintiff also represents that the court erred in failing to give cautionary instruction warning the jury against consideration of comparative negligence as between Barbara Wills and defendant Petros. This plaintiff is in no position to so urge. She did not request such an instruction and, therefore, cannot now assert its absence as error.

We find no merit in plaintiff's first assignment.

For her second assignment plaintiff asserts that the evidence was insufficient to justify a verdict.

Plaintiff failed to move for a directed verdict and here apparently proceeds on the theory that defendants' testimony was contrary to established physical facts and, therefore, should have been rejected as a matter of law and had this been done it would have left no substantial evidence to support the jury's verdict. We will later give specific attention to the matter of claimed 'physical facts' in our consideration of plaintiff's fourth assignment.

Not only did plaintiff fail to move for a directed verdict, but she likewise failed to request the trial court to instruct the jury to find in her favor because of the alleged failure of defendants' evidence. She is, therefore, in no position to urge here that the evidence was not sufficient to support the verdict returned.

In the following statement excised from her brief plaintiff disclosed consciousness of the vulnerability of her position by reason of her failure to move for a directed verdict or take exception to instructions given:

'The failure of the plaintiff to object expressly and of record to the misleading instruction, and the failure to request the giving of the cautionary instruction do not constitute a waiver of rights thereunder. Were this an appeal from the judgment, the plaintiff would be bound by the status of the record. But the trial court in the consideration of a motion for a new trial is not bound by the formal status of the record. It may and should consider any and all errors and irregularities called to its attention, whether proper objection or request was made or not. On this appeal from the denial of the motion for a new trial, the appellate court must consider all of such errors and irregularities called to the attention of the court. It is submitted that the failure to grant a new trial upon the motion by the plaintiff was a manifest abuse of discretion on the part of the trial court, and that this cause should be remanded for a new trial.'

Thus, plaintiff exhibits a misconception of the law as revealed in State v. Langley, 1958, 214 Or. 445, 315 P.2d 560, 323 P.2d 301, certiorari denied 358 U.S. 826, 79 S.Ct. 45, 3 L.Ed.2d 66. Mr. Justice Lusk, following the long-established rule, said at page 476 of 214 Or., at page 315 of 323 P.2d:

'* * * the denial of the motion presents no question for this court's consideration. While the trial judge has a certain discretion, which will not be disturbed on appeal except for its abuse, to grant a new trial, even in the absence of an objection or exception, for irregularities in the proceedings which deprive a party of a fair trial (Hays v. Herman , 322 P.2d 119, * * *; State v. Bosch, 139 Or. 150, 154, 7 P.2d 554; Veazie v. Columbia, etc., R. R. Co., 111 Or. 1, 224 P. 1094), yet the rule is that when a party having knowledge of an error or an irregularity during the trial fails to call it to the attention of the court and remains silent, speculating on the result, he is deemed to have waived the error, and the denial of a ...