Skourtis v. Ellis ( 1975 )

535 P.2d 1367 (1975)

George T. SKOURTIS, Appellant,
v.
Gareth I. ELLIS, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 5, 1975. Decided May 30, 1975.

Nels Peterson, Portland, argued the cause for appellant. With him on the briefs were Kevin R. Brown, and Peterson, Susak & Peterson, P.C., Portland.

James C. Tait, Oregon City, argued the cause for respondent. With him on the brief were Frederic D. Canning and Hibbard, Caldwell, Canning, Bowerman & Schultz, Oregon City.

BRYSON, Justice.

Plaintiff brought this action to recover damages for injuries sustained in an automobile accident at the intersection of N.W. 21st and Johnson Streets in Portland, Oregon. The jury returned a verdict awarding plaintiff $3,628.86 as special damages but no general damages. Plaintiff appeals.

The plaintiff contends that the verdict was "defective" in that it contained no general damages and that "[t]he statement of counsel for plaintiff was a valid exception to the verdict." The verdict returned by the jury was as follows:

"WE, the Jury, * * * do find our Verdict in favor of the Plaintiff, GEORGE T. SKOURTIS, * * * and assess Plaintiff's general damages in the sum of $ None and special damages in the sum of $3,628.86 ."

The transcript shows there was a "pause" after the court polled the jury. The court then excused the jury "from further duty in connection with this case." After the jury was excused, plaintiff's counsel stated:

"It is my understanding that the jury had brought in a Verdict for specials only, with no generals, and I am not certain at this moment of the propriety of such a Verdict. It is my understanding that they had to find some general damages as well."

The court replied:

"* * * I paused after checking the count. I heard no Motion of any kind. Therefore, I received the Verdict and discharged the jury."

The rule is well established that plaintiff was required to make a contemporaneous objection to the jury's verdict. We reviewed this problem in the recent case of Smith v. J.C. Penney Co., 99 Or. Adv.Sh. 1479, 1486-89, 525 P.2d 1299, 1304 (1974), and quoted with approval the following rule from Mullins v. Rowe et ux., 222 Or. 519, 524, 353 P.2d 861 (1960):

"(1) The time to object to a defective verdict, if it is defective, is while the jury is still on hand so that the trial court can resubmit the matter with proper instructions.

"(2) An objection not taken when the verdict is returned into court is waived.

"(3) The only correct procedure to follow is to resubmit the matter to the same jury."

Notwithstanding his failure to make a timely objection, plaintiff contends he is still entitled to raise the same objection in a subsequent motion, which he did in the case at bar. In Fischer v. Howard, 201 Or. 426, 464, 271 P.2d 1059, 1075 (1954), we disposed of this contention by stating:

"We are satisfied that when the plaintiff, after acquainting himself with the verdict, made no objections to its receipt and no motion that the cause be recommitted to the jury, he waived the objections now under analysis. Having waived them, they were unavailable as the basis for a motion for a new trial. * * *"

We find no error as contended in this assignment.

Plaintiff also assigns as error the trial court's refusal "to give plaintiff's requested instructions to withdraw * * * the alleged charges of contributory negligence contained in defendant's Answer." Defendant alleged that the plaintiff was negligent in failing to maintain a proper lookout, in failing to keep his vehicle under proper control and in traveling at an excessive rate of speed. Plaintiff argues there was insufficient evidence to support defendant's allegations and therefore they should have been withdrawn from the jury's consideration.^[1]

This accident occurred on a clear, dry September afternoon. Plaintiff was driving his car south on N.W. 21st Street and defendant was driving a one-ton truck west on N.W. Johnson Street. The accident occurred in the intersection. Both streets have two opposing lanes of traffic with parking lanes on both sides. Traffic on N.W. Johnson Street is controlled by a stop sign. The defendant, not familiar with the area, was looking for a particular street sign and failed to see the stop sign and stop before entering the intersection. He testified he was in second gear and traveling at 15 miles per hour. Plaintiff lived nearby and testified he was familiar with the intersection and traffic conditions in that area; that there were no other vehicles either behind him or approaching from the opposite direction. The plaintiff also testified that he first saw the defendant's truck when the front of his car was one foot "from entering the intersection," as measured by the curb line of N.W. Johnson Street. Neither driver applied the brakes on his vehicle prior to the accident. The collision occurred in the northwest quarter of the intersection; both vehicles swung around and came to rest on the south curb of Johnson Street, a few feet west of the intersection. The plaintiff's vehicle struck the defendant's truck "toward midships." A diagram of the intersection, showing the point of impact and position of the vehicles where they came to rest, and photographs of the intersection were received in evidence.

Although plaintiff was the favored driver, this does not relieve him of the duty of exercising due care with reference to speed, lookout, and control. Wilson v. Overbey, 223 Or. 256, 259, 354 P.2d 319 (1960); Rankin v. Taylor, 260 Or. 222, 225, 489 P.2d 950 (1971). It is clear from the evidence and exhibits that the jury could have found that plaintiff should have observed defendant some distance before his car was one foot from the intersection and if he had so observed the defendant's vehicle, he should have applied his brakes. The only direct evidence of plaintiff's speed was his statement that he was traveling at 20 miles per hour immediately prior to the accident.

Defendant contends that this testimony, taken with all of the other evidence and considered in context with plaintiff's "proven" unreliability for truth,^[2] supports an inference from which the jury could conclude that plaintiff was traveling at an excessive rate of speed under the circumstances.

Here the jury could have rejected plaintiff's testimony that he was traveling at 20 miles per hour. Rickard v. Ellis, 230 Or. 46, 51-52, 368 P.2d 396 (1962). In McMullen v. Robinson, 211 Or. 531, 535, 316 P.2d 503 (1957), the trial court submitted speed, lookout, and control to the jury and instructed in the language of the basic rule, as in the case at bar. The appellant contended "that there was no evidence of speed" and the same should have been withdrawn from the jury. We held:

"* * * The word `speed' as used in the statute does not necessarily mean rapid motion measured by miles per hour. The question is whether the rate of travel was excessive under all the facts, circumstances and conditions existing at the time. [Citing cases.]" 211 Or. at 535, 316 P.2d at 505.

In McReynolds v. Howland, 218 Or. 566, 346 P.2d 127 (1959), an intersection accident, the defendant assigned as error the trial court's refusal to withdraw from the jury's consideration the plaintiff's allegation of excessive speed. We held that the basic rule does not establish a maximum or minimum speed because "the circumstances" always determine the lawful rate of speed and stated:

"* * * It is clear that a speed accompanied by a proper lookout might not be negligent, but driving at any speed without such lookout may be negligent." 218 Or. at 569, 346 P.2d at 129.

See also Hess v. Larson, 259 Or. 282, 289, 486 P.2d 533 (1971), and Palmore v. Kirkman Laboratories, 99 Or.Adv.Sh. 2180, 2182, 527 P.2d 391, 393 (1974). This is not to say that the issue of speed should not be withdrawn from the jury's consideration under certain circumstances. Krening v. Flanders, 225 Or. 388, 394, 358 P.2d 574 (1961); Armstrong v. Stegen, 251 Or. 340, 343, 445 P.2d 509 (1968); Alvarez v. Great North. Railway Co., 261 Or. 66, 75, 491 P.2d 190 (1972).

Moreover, in this case plaintiff's speed is interrelated with his control and lookout. Troupe v. Ledward, 238 Or. 531, 536, 395 P.2d 279 (1964); Rogers v. Green, 241 Or. 435, 439, 406 P.2d 553 (1965). "It was for the jury to determine whether such speed was excessive under all the facts, circumstances and conditions existing at the time." Sage v. Royce, 223 Or. 590, 594, 354 P.2d 295, 297 (1960). We conclude that the trial court did not err in refusing to withdraw the alleged charges of contributory negligence. Because of the above ruling we need not discuss plaintiff's final assignment of error that the trial court erred in instructing the jury on comparative negligence.

Affirmed.

TONGUE, Justice (concurring).

I concur in the opinion by the majority except for its holding to the effect that there was sufficient evidence of excessive speed so as to make it proper to submit to the jury that specification of contributory negligence. There was no competent evidence to contradict plaintiff's testimony that he was driving 20 miles per hour on a through street, with stop signs on either side of the intersection where the accident occurred. There was, however, competent evidence to support a finding by the jury that plaintiff failed to maintain a proper lookout and to keep his automobile under proper control.

Our past decisions on this subject in similar cases have not been consistent. Compare McMullen v. Robinson, 211 Or. 531, 316 P.2d 503 (1957); and McReynolds v. Howland, 218 Or. 566, 346 P.2d 127 (1959), with Wilson v. Overbey, 223 Or. 256, 354 P.2d 319 (1960); and Krening v. Flanders, 225 Or. 388, 358 P.2d 574 (1961), and cases cited therein. In my opinion, however, this is not a proper case in which to attempt, by dissenting opinion, to either reconcile such cases or to propose the overruling of such cases as may not be consistent with a proper rule on this subject.

NOTES

[1] The trial court fully instructed the jury on comparative negligence, including examples on how to determine the amount of damages, ORS 18.470, and submitted a general verdict showing general and special damages (see page 1 of opinion). It is plaintiff's contention that the jury could have returned a larger verdict if the trial court had not submitted plaintiff's contributory negligence to the jury.

[2] Considerable evidence was received to impeach plaintiff's credibility and to contradict his claim of injuries and loss of wages.