Zeek v. Bicknell

• Decision Date: 26 April 1938
• Citation: 159 Or. 167,78 P.2d 620
• Parties: ZEEK <I>v.</I> BICKNELL ET AL.
• Court: Oregon Supreme Court

159 Or. 167

78 P.2d 620

ZEEK

v. BICKNELL ET AL.

Supreme Court of Oregon.

Argued March 29, 1938.

Affirmed April 26, 1938.

New trial — Grounds

1. An order granting a new trial without reciting any specific ground therefor would be affirmed if any of the grounds set forth in motion for new trail was tenable.

Appeal and error — New trial

2. On appeal from order granting new trial without reciting any specific ground therefor, error would not be presumed, and it was incumbent on appellants to show that none of grounds specified in motion for new trial was well taken.

New trial — Grounds

3. On appeal from order granting new trial without reciting any specific ground therefor, proper practice required presentation in appellants' opening brief of each of grounds of motion for new trial, and grounds not discussed were waived.

Automobiles — Instructions — Basic rule

4. In action for operation of automobile at negligent speed, instructions should define meaning of basic statutory rule requiring reasonable and prudent speed with regard to existing conditions, and should not mention speeds indicated by statutes for business and residence districts and outside such districts.

Automobiles — Basic rule — Negligence

5. As respects basic statutory rule as to speed of automobiles, whether motorist is negligent is determined not by "ordinary circumstances", but by standard of care that ordinarily prudent person would exercise under existing circumstances, and motorist must exercise degree of care commensurate with danger involved.

Automobiles — Instructions — Basic rule

6. In action for death of pedestrian who was struck by automobile, under conflicting testimony fixing speed of automobile at 35 to 60 miles per hour, instruction that, at point in controversy, indicated speed was 45 miles per hour under statute making such speed reasonable outside business and residential districts, but that motorist was not required to drive so fast, and that jury should also consider basic statutory rule requiring reasonable and prudent speed with regard to existing conditions, was erroneous, as being inapplicable and misleading, and was prejudicial to administratrix.

Department 2.

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Action by Ethel M. Zeek, administratrix of the estate of William A. Zeek, against Clarence Bicknell and another, for the death of William A. Zeek, who, while walking across a highway, was truck by an automobile driven by named defendant and owned by defendant Gale Herman Merwin. From a judgment granting a new trial following the return of a verdict for defendants, defendants appeal.

AFFIRMED.

Glen R. Jack, of Oregon City (Charles T. Sievers, Butler & Jack, and George L. Hibbard, all of Oregon City, on the brief), for appellants.

Paul R. Harris, of Portland (Davis & Harris, A.F. Knight, and W.M. Davis, Jr., all of Portland, on the brief), for respondent.

BELT, J.

On November 13, 1936, William A. Zeek, while walking in a westerly direction across a four-lane super-highway in the city of Milwaukie, Oregon, was struck and killed by an automobile driven by the defendant Bicknell and owned by the defendant Merwin. Evidence on behalf of the plaintiff tends to show that the automobile was traveling between 55 and 60 miles an hour, while the evidence of the defendants places the speed at 35 miles an hour. The evidence is also in conflict as to whether the decedent was in the regular pedestrian crossing or about 10 feet south of the same at the time he was struck.

The cause was submitted to a jury and verdict returned in favor of both defendants. Judgment was entered accordingly. On motion of the plaintiff, the court made an order setting aside the judgment and granted a new trial. Defendants appeal.

The motion for a new trial is based upon nine assignments of error, viz:

"(1) Instructions by the Court upon the question of the indicated speed involved or applicable in the within case, and particularly the instruction by the court to the effect that the indicated speed applicable was forty-five miles an hour.

"(2) Instruction by the Court to the effect that the Legislature had indicated a speed of forty-five miles an hour at the time and place of the accident in question, and that the Legislature thought this was a reasonable speed for the district involved."

The remaining seven assignments are based upon the failure of the court to give certain instructions requested by plaintiff.

1-3. The trial court, in its order, did not recite any specific ground for granting a new trial. Hence, if any of the grounds set forth in the motion are tenable, this court must sustain the order. Error will not be presumed and it is incumbent upon the appellants to show that none of the grounds specified in the motion is well taken: Cicrich v. State Industrial Accident Commission, 143 Or. 627 (23 P. (2d) 534); Karberg v. Leahy, 144 Or. 687 (26 P. (2d) 56). In appellants' opening brief, it is observed that only two grounds (Assignments of Error Nos. I and II) are discussed, as counsel for appellants state that the court "allowed the new trial upon a recognition of these two alleged errors", although it is conceded that the record does not affirmatively so indicate. The proper practice requires presentation in the opening brief of each of the nine grounds set forth in the motion for new trial. Failure to follow such procedure results in waiver of the grounds not discussed. If the rule were otherwise, the respondent would be placed at a great disadvantage in not having brought to the attention of this court error committed which — although not discussed — would justify a new trial. In view of the conclusion that prejudicial error was committed in the instructions of the court which appellants have discussed in their opening brief, the rule above stated will not be invoked.

The trial court thus instructed the jury relative to indicated speed:

"At the point in controversy the indicated speed is forty-five miles an hour. That is, the legislature has passed a law making specific allowance of forty-five miles an hour. That is their idea of what is reasonable in places where it is not a residential section or business section. But that does not mean a motorist has to drive that fast. You have to take that in connection with the basic rule. That is, what is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other conditions then existing. In some cases maybe ten miles would be too fast, and in other cases sixty would not be. You take the situation from the evidence whether the defendants were going too fast." (Italics ours.)

Prior to the above instruction, the court stated the basic rule in the language of the statute (§ 55-2201, Oregon Code Supplement 1935) as follows:

"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 hazard at intersections and any other conditions then existing."

Section 55-2201 thus provides the penalty for such violation:

"Any person convicted of a violation of the above basic rule, unless such violation occurs under the conditions of subdivision (b) of this section, shall be punished by a fine of not to exceed twenty-five dollars ($25.00), or by imprisonment for not to exceed five (5) days, or by both such fine and imprisonment."

In Section 55-1901, Oregon Code Supplement 1935, "business district" and "residence district" are thus defined:

"(x) `Business District'. The territory contiguous to a highway when fifty (50) per cent or more of the frontage thereon for a distance of six hundred (600) feet or more on one (1) side or three hundred (300) feet or more on both sides is occupied by buildings in use for business.

"(y) `Residence District'. The territory contiguous to a highway not comprising a business district when the frontage on such highway for a distance of three hundred (300) feet or more is mainly occupied by dwellings or by dwellings and buildings in use for business."

The indicated speed for a business district is 20 miles an hour. The indicated speed for a residence district is 25 miles an hour, while the statute further provides that 45 miles an hour is the indicated speed "outside of business or residence district, except as otherwise limited by this act". Any person who violates the indicated speed rule and while so driving also violates the basic rule,

"shall * * * be punished by a fine of not to exceed one hundred dollars ($100) or by imprisonment not to exceed ten (10) days, or by both such fine and imprisonment."

The Uniform Act Regulating Traffic on the Highways (Laws of Oregon for 1931, chapter 360, §§ 55-1901 to 55-2808,...