Winters v. Bisaillon

• Decision Date: 18 February 1936
• Parties: WINTERS v. BISAILLON.
• Court: Oregon Supreme Court

54 P.2d 1169

152 Or. 578

WINTERS v. BISAILLON.

Supreme Court of Oregon

February 18, 1936

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by C. L. Winters against Marr Bisaillon. Judgment for defendant, and plaintiff appeals.

Affirmed.

C. M. Hodges, of Portland (Hodges & Gay, of Portland, on the brief), for appellant.

William H. Morrison, of Portland (Maguire, Shields & Morrison, of Portland, on the brief), for respondent.

BAILEY Justice.

This is an action for damages for personal injuries sustained by plaintiff in a collision between motor vehicles in the city of Portland. The accident occurred at the intersection of Southwest Sixteenth avenue and Southwest Salmon street on February 15, 1934. At the time thereof plaintiff was driving his ambulance north on Southwest Sixteenth avenue and the defendant was driving his car, a Packard sedan, west on Southwest Salmon street. Plaintiff's testimony tended to support his contention that the ambulance which he was driving entered the intersection first, while the defendant's testimony tended to prove that the defendant's car was first to enter the intersection. The plaintiff by his own testimony admitted that he could not, because of an embankment, see cars approaching from the right, until his own motor vehicle had entered the intersection, of in his own words: "As the nose of my car entered the intersection I looked to the right. You can't see before that because there is a high bank there."

The case was tried before the court and a jury, and, from a judgment entered on a verdict in favor of the defendant, the plaintiff appeals.

In the affidavit of one of the attorneys for plaintiff, supporting his motion for a new trial, it is stated that the court gave the following instruction "The plaintiff does not claim the right of way because he was driving an ambulance, nor does he claim that he sounded the siren. He claims the right of way because he entered the intersection first, and the rule about sounding a horn applies to the defendant as it applies to the plaintiff with regard to the sounding of the siren. Under the circumstances disclosed by the evidence, there was no occasion for the sounding of the horn."

It is further stated in the same affidavit that the affiant heard members of the jury talking among themselves in the corridor of the courthouse, to the effect that nine members of the jury had "decided that it was the duty of plaintiff to sound his siren when approaching, entering and traversing the intersection and that he was guilty of contributory negligence because he failed to do so."

Based upon this affidavit, it is asserted by the plaintiff that the jury was guilty of misconduct, in that it disregarded and refused to follow the above alleged instruction. However, no such instruction was given by the court; and, even had such a charge been given, the verdict of the jury could not be impeached by an affidavit based on the statement of a juror as to what occurred in the jury room. Beginning with the case of Cline v. Broy, 1 Or. 89, and proceeding through an unbroken line of decisions to the same effect, this court has held that the affidavits of jurors as to what occurred during their deliberations may not be received to impeach their verdict. State v. Smith, 43 Or. 109, 71 P 973; Schmalz v. Arnwine, 118 Or. 300, 246 P. 718; Grammer v. Wiggins-Meyer Steamship Co., 126 Or. 694 270 P. 759. Nor may the affidavit of a litigant or his attorney be considered, as to what some juror said concerning misconduct of the jury. Hinkel v. Oregon Chair Co., 80 Or. 404, 156 P. 438, 157 P. 789. It would naturally follow that, if the affidavit of a juror is inadmissible to impeach a verdict, the affidavit of some other party based upon overheard conversation between jurors regarding the verdict would be equally inefficacious for that purpose.

On the trial, the plaintiff requested the court to give the following instruction: "The purpose of sounding a horn is to give warning of the approach of the automobile, when this is reasonably necessary to avoid danger or injury to others, by affording them an opportunity to take measures for their own protection. However, negligence can not be predicated upon a failure to sound the horn of the approach of an automobile when it was seen by the other party, as such warning would not communicate to him any knowledge he did not already have."

In this connection the court instructed the jury as follows: "The only question here involved with regard to the giving of the signal, is whether or not, under the circumstances as disclosed by the evidence, a reasonably careful and prudent driver of an ambulance would have given the signal or sounded his siren. The same rule applies to that as would apply to the defendant with regard to sounding his horn. There is no occasion for the sounding of the horn, unless a reasonably careful and prudent person would have."

In support of the assignment of error based on this instruction, the appellant argues that "negligence can not be predicated upon the failure to sound a horn or give other warning of the approach of an automobile when it was seen by the plaintiff or defendant, or both, because the giving of such warning would not communicate any knowledge which they did not already have of the position of the other automobile."

The evidence is not certain as to when and at what distance from the intersection the defendant observed the plaintiff's ambulance. Since the plaintiff himself admitted that he could not see the approach of the car from the right until after he had entered the intersection, it is reasonable to assume that the defendant could not have seen the ambulance approaching before it reached the intersection. The requested instruction on the subject was faulty, in that it assumed that the defendant did see the plaintiff's vehicle and that the sounding of the horn would not have made the defendant aware of any fact of which he was not already cognizant. The instruction which was given by the court was proper under the circumstances, and no error was committed in failing to give the above-quoted instruction requested by the plaintiff. The accident occurred while section 35 of chapter 360, Oregon Laws 1931 (page 645), giving the right of way to the driver of the vehicle first entering the intersection, was in effect.

Error was also predicated on the refusal of the court to give certain instructions requested by the plaintiff relating to the right of way at intersections and to the exercise of reasonable care and prudence in operating motor vehicles on the highway. Some of these instructions are argumentative, some of them have reference to the rules of the road in force prior to the amendment of such rules by the Legislature in 1931, and some are not applicable to the facts in this case. Still others of the requested instructions were actually given verbatim. The court's charge to the jury fully covered the issues involved, and no error was committed in failing to give the omitted parts of requested instructions.

The two remaining assignments of error involve the question of whether the city ordinance limiting the speed of motor vehicles within the corporate limits of the city of Portland to 25 miles an hour is in conflict with the laws of this state regulating the speed of motor vehicles, and, if so, whether the state law or the city ordinance is controlling.

One of the acts of negligence with which the plaintiff charges the defendant is that the latter was driving at a greater rate of speed than 25 miles an hour. Ordinance No. 61219 of the city of Portland, passed August 12, 1931, provides that it shall be unlawful to operate a motor vehicle within the corporate limits of the city of Portland at a greater speed than 25 miles per hour. The circuit court refused to give certain instructions in this connection requested by the plaintiff, and ruled that the ordinance, in so far as it attempted to prescribe a maximum rate of speed, was contrary to the state law; hence to that extent invalid.

Our first inquiry will therefore be directed to the question of whether the city ordinance is in conflict with the state law, for, if it is not, then we need not consider which is applicable here, the statute or the provisions of the city ordinance.

Chapter 360, Oregon Laws 1931 (page 626), is the only state law with which we are now concerned. Section 20, subdivision (a), page 637, of this act, is referred to as the basic rule, and provides that "no person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazards at intersections and any other conditions then existing." Subdivision (b) of the same section specifies the indicated speeds in passing schoolhouses, in approaching grade crossings of steam, electric, or street railways, driving in business districts, in residence districts, in public parks within city limits, and outside business and residence districts. It further provides a penalty upon conviction of violating the basic rule, and the penalty in case of violation of the basic rule coupled with infringement of the indicated speed limit is more severe than for violation of the basic rule only. No punishment is provided for exceeding the indicated speed limit unless some other provision of the act is also violated.

Sections 6 and 7 (page 631), so far as the latter is applicable, of the act above referred to, are as follows:

"Section 6. The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce...