Wolfe v. Union Pac. R. Co.

• Decision Date: 07 February 1962
• Citation: 230 Or. 119,368 P.2d 622,74 Or.Adv.Sh. 245
• Parties: Harold R. WOLFE, a minor, by his Guardian ad litem, Marguerite DeBarthe, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 622

368 P.2d 622

230 Or. 119

Harold R. WOLFE, a minor, by his Guardian ad litem Marguerite DeBarthe, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 10, 1962.

Decided Feb. 7, 1962.

Ben T. Gray, Portland, argued the cause and submitted a brief for appellant.

W. J. Cosgrave, Portland, argued the cause for respondent. With him on the brief were Randall B. Kester and Robert Batchelder, Portland.

Before McALLISTER, C. J., and SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

O'CONNELL, Justice.

This is an action to recover damages for personal injuries. The jury returned a verdict for plaintiff. Defendant moved for a new trial on the ground that one of the jurors, Sherman Olson, had visited the scene of the accident. The trial court granted the motion. Plaintiff appeals from the order granting a new trial. Defendant cross-appeals assigning as error the denial of its motions for nonsuit, directed verdict and judgment n. o. v.

The facts are as follows. On October 18, 1958, at approximately 8:45 a. m., plaintiff was driving his automobile in a westerly direction on N. E. Halsey street in Portland, Oregon. He decided to try to get onto the Banfield freeway which was north of and parallel to Halsey street. Plaintiff turned to the right off Halsey onto defendant's private road, mistakenly believing that the road was a public highway and that it ran directly to the Banfield freeway which could be seen from Halsey street. About one fourth of a mile north of Halsey defendant's road turned sharply to the left. At the point where the road turned there was a steep embankment. Plaintiff, while traveling about 40 to 50 miles per hour, drove off the road at the curve. His automobile landed 53 feet from the top of the embankment and finally came to rest 36 feet from the point at which it first struck the ground after leaving the roadway. On the morning of the accident it was raining hard and there was a heavy wind.

Some time in September, 1958, defendant placed a sign reading 'No Trespassing Private Property Union Pacific Railroad' on its property north of Halsey street and east of the private roadway. The evidence as to the distance from the sign to the roadway and to Halsey street, and the size of the sign, was conflicting. Defendant's witness Meier testified that the sign was thirty inches wide and five feet long and that it was located twenty feet north of the shoulder of Halsey street and between the paved portion and shoulder of the private road. Plaintiff offered evidence to prove that the sign was smaller in size and that it was located farther from the roadway. The roadway was not otherwise marked with signs of any kind.

Some time after the date of the accident the roadway became a county road. The county placed a 'Slow' sign and a 'Sharp Curve' sign along the road and erected a barricade at the turn which plaintiff failed to negotiate.

The jury returned a verdict for the plaintiff. After the verdict was in it was learned that juror Olson had visited the scene of the accident. It was on this ground that the trial court ordered a new trial.

Plaintiff contends that Olson's unauthorized view of the premises was not prejudicial to defendant and that, therefore, there was no ground to support the order for a new trial.

It is the rule in this state that an unauthorized inspection of the locus in quo by a juror is ground for setting aside a verdict and granting a new trial unless it is clear that the misconduct could not have influenced the verdict. ¹

In the present case Olson's investigation of the scene of the accident clearly could have influenced his judgment as a juror. Between the date of the accident and the evening on which Olson visited the scene of the accident various changes had been made on the premises. We have already referred to the fact that after the county acquired the road two warning signs ('Slow' and 'Sharp Curve') were erected along the roadway. A barricade had been erected at the curve which plaintiff had failed to negotiate. According to one of defendant's witnesses the 'Private Property' sign had been moved a considerable distance from its original location.

As a part of his investigation Olson attempted to measure the 'Private Property' sign. In the proceedings conducted by the trial judge to determine the nature of Olson's inspection, the latter stated as follows:

'MR. OLSON: * * * I couldn't see much. I drove down the road and came back up to where there is a sign on the field and I stopped there and checked the sign which everyone had raised such a point of. The size of, and the sign appeared to me to be approximately two and a half feet.

'THE COURT: About how much?

'MR. OLSON: From my estimation, it appeared to be about two and a half feet in length and I couldn't believe that Mr. Meier was giving false testimony, either, so I got out of the car and went out to the sign and checked--didn't have a tape measure, but measured it with my hands. It was approximately between four and five feet in length. It's a big sign. It didn't appear as big as that. Then I drove back here, I mean, I drove home that night and came into court the next day.'

The trial judge had previously expressed the opinion that the changes made in the premises after the accident were such that the jury should not be permitted to see them. This occurred at the opening of the case when plaintiff requested that the jury visit the scene of the accident. In denying the request the trial court stated:

'THE COURT: * * * One of the essential preconditions for a view would be no changes of any consequence. If there are none and were none in this case, I would say this view would serve some purpose to have the people get out there and look around and while it is no evidence to the jury, nevertheless, they could better evaluate the plaintiff's driving at that time and place. But, where there has been substantial change in the case, I think it would be error to...