Kuehl v. Hamilton , 136 Or. 240 ( 1931 )

In Banc. Based upon charges that the defendant so negligently operated his automobile that it collided with one driven by the plaintiff and thereby injured both him and his automobile, the plaintiff instituted this action for the purpose of recovering the resulting damages. Appellant's brief thus describes the collision as "* * * an accident between plaintiff's truck and defendant's Ford automobile in the town of Multnomah May 25, 1929, at 7:30 o'clock a.m. while defendant was passing plaintiff's truck and while both were trying to pass a third automobile at the same time." From a judgment, based upon a verdict, in favor of the plaintiff the defendant appealed. The defendant argues that error was committed when the circuit court overruled his motions for a nonsuit and for a directed verdict. His contentions are predicated upon the fact that plaintiff's vehicle, a half-ton truck, was not equipped with a rear view mirror as required by section 55-907, Oregon Code 1930. The conclusion that the absence of this item of required equipment constituted negligence per se requires no citation of authorities in this state. But before the defense of contributory negligence was complete it was necessary for the defendant to prove not only that the plaintiff was guilty of negligence but also that his negligent act was the proximate cause or a concurring cause of the collision. The plaintiff testified that before he turned to his left for the purpose of passing the car ahead he looked to his rear through a peephole three inches in diameter, cut in a cloth which hung to his rear over the cab of the truck as a protection against the weather, and saw a car, but, believing that he could safely perform his contemplated act, proceeded. He also testified that he heard the horn of defendant's car to the rear and thus was additionally apprised of its presence upon the highway. Had he possessed a rear view mirror, and had he peered into it before turning to his left the information it would have imparted would not have advised him of a new fact, but would only have confirmed information he already possessed, provided, of course, that his above mentioned testimony was true. Under the above circumstances the court could not say that because the defendant had proved the plaintiff guilty of negligence he had also shown that the negligent act was the proximate cause, or a concurring cause, of the collision. The latter constituted an issue for the jury. The observations made in Martin v. Oregon Stages, 129 Or. 435 (277 P. 291), concerning the absence of the required white light upon the rear of the disabled truck, are applicable to our present situation. We conclude that the circuit court committed no error when it overruled the motions for a nonsuit and for a directed verdict.

The only other assignment of error which requires notice is based upon a statement made by plaintiff's attorney in the course of his argument to the jury. The bill of exceptions indicates that in the course of Mr. Green's comment he said: "I want to relate to you an incident that happened to me yesterday that shows of what little use a mirror is. We were coming across the Burnside bridge" — at this point defendant's objection "that the argument be limited to the evidence" was disposed of with the ruling: "Proceed with the argument; upon Mr. Green's assurance, there is nothing here but what can be inferred." He proceeded: "We were going a little too fast and I thought I was watching the mirror, and when I got down the Burnside approach to 2nd street I heard the siren, and a police officer tagged me. In other words, the point I am making is, it doesn't make any difference in this case whether he had one mirror or a hundred mirrors. It didn't do any good with me; it wouldn't have done any good for Mr. Kuehl." At that point defendant's counsel moved: "I would like the evidence related by counsel stricken and the jury instructed to disregard it." The court promptly ruled: "It is not evidence at all. * * * Well, it is not evidence. Therefore, they should not consider it as such, statements of counsel. That is what you refer to, is it not, Mr. Holland?" Mr. Holland: "Surely. The argument is supposed to be upon the evidence and nothing else." Mr. Green drew the incident to a close by saying: "Or the inferences which we can draw from those conditions that were surrounding the situation as they were at that time, and we can relate it to machines or to mirrors, or to * * *." Although the transcript of the proceedings mentions no exception, yet since the bill of exceptions recites that one was allowed we are bound to assume that the defendant disapproved of the rulings made by the court.

Control over the argument of counsel is intrusted largely to the discretion of the trial judge. In Huber v. Miller, 41 Or. 103 (68 P. 400), Mr. Justice WOLVERTON said:

"It is usually, however, within the discretion of the trial judge to determine whether counsel transcend the limits of professional duty and propriety in this particular, and the exercise of such discretion is not the subject of review, except where they are permitted to travel out of the record, or to persist in disregarding the admonitions of the trial judge, or to indulge in remarks of a material character so grossly unwarranted and improper as to be clearly injurious to the rights of the party assailed."

It is unnecessary to add further citations to the numerous ones assembled by Judge WOLVERTON in support of his above statement. Obviously the judge who presides over the trial, and who becomes familiar with its atmosphere, is best able to determine whether an excursion into a forbidden field is prejudicial, the extent of the injury, if any, and what remedies must be applied to undo the harm. In the present instance plaintiff's counsel made use of an experience which befalls many motorists in an effort to illustrate his contention that the rear view mirror does not always apprise the motorist of the presence of vehicles to his rear. Since the defendant claimed that the absence of such a mirror upon the plaintiff's car was the proximate cause of plaintiff's injury the merit of such equipment was a proper subject for discussion. Any fact of which the court can take judicial notice, although evidence of it has not been formally introduced, constitutes a proper subject for comment by counsel, provided the argument is relevant to some issue in the case: Wilson v. Van Leer, 127 Pa. 371 (17 A. 1097, 14 Am. St. Rep. 854). The reports of our court contain many expressions to the effect that a juror is not required to leave behind the experiences of life, which have guided him in his daily affairs, when he enters the jury box, but that upon the contrary his usefulness is enhanced if he has had broad experiences with affairs and with people, and makes good use of them as a juror: Rostad v. Portland Ry. etc. Co., 101 Or. 569 (201 P. 184); Willis v. Lance, 28 Or. 371 (43 P. 384, 487); Wigmore on Evidence (2d Ed.) 2570; 2 R.C.L., 416. In Rostad v.Portland Ry. Co., supra, Mr. Justice BURNETT said:

"But any juror must consider the testimony in the light of that knowledge and experience which is common to all men. For instance, it is a matter of common knowledge that a bullet piercing the brain of a human being will in all likelihood prove fatal. It is common knowledge also that * * *"

Continuing, Judge BURNETT employed the following portion of an Indiana decision, Jenney Electric Co. v. Branham, 145 Ind. 314 (41 N.E. 448, 33 L.R.A. 395):

"Jurors should be, and as a rule are, selected because of their extensive experience among men * * *. This education, be it much or little, is a part of the juror and should not, if possible, be laid aside in passing upon the inducements which may surround a witness to speak falsely."

Next he quoted from a Wisconsin case, Solberg v. RobbinsLumber Co., 147 Wis. 259 (133 N.W. 28, 37 L.R.A. (N.S.) 790):

"Jurors are not restricted to a consideration of facts directly proved, nor are they expected to lay aside matters of common knowledge, or their own observation and experience of the affairs of life, but on the contrary, may give effect to such inferences as common knowledge or their personal observation and experience may reasonably draw from the facts directly proved."

In Willis v. Lance, supra, this court said: "His experience is or should be the lamp of reason by which his judgment is controlled, and he may consult and be governed by it in all cases in which the evidence is conflicting and not declared to be conclusive." In that case the court held that the jurors could use their general, practical knowledge in deciding whether to believe numerous eye-witnesses as to the condition of the weather, or a meteorological wind-recording device. In the instant case the jury was called upon to determine whether the absence of a rear view mirror was the cause of the collision. There is nothing novel about such an article. It is precisely similar to the household article with which every one is thoroughly familiar. It is a well-known fact that although practically all automobiles possess such equipment numerous motorists are being daily arrested for violation of our traffic regulations after motorcycle officers have pursued them for considerable distances. The daily newspapers, the pulpit, the stage, the radio, etc., are constantly commenting upon the innumerable arrests which are being made by motorcycle officers. A juror unfamiliar with the above fact would certainly be an oddity. Hence, since the subject-matter of Mr. Green's argument was one of common knowledge he was entitled to make use of it in some form or other to illustrate his contention that the rear view mirror is not infallible. We quote from Tucker v.Henniker, 41 N.H. 317: "His illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination." And in Berry v.State, 10 Ga. 511, Judge Lumpkin indicated the broad range or resources which counsel may employ to make their argument serve a useful purpose:

"Does not history, ancient and modern — nature, art, science and philosophy — the moral, political, financial, commercial and legal — all open to counsel, their rich and inexhaustible treasures, for illustration? Here, under the fullest inspiration of excited genius, they may give vent to their glowing conceptions, in thoughts that breathe and words that burn. Nay more, giving reins to their imagination, they may permit the spirit of their heated enthusiasm to swing and sweep beyond the flaming bounds of space and time — extra flammantia maenia mundi."

But it is said that Mr. Green employed an experience personal to himself, and that in effect his comment was testimony. Very likely this observation possesses some truth; but the effectiveness of his statement did not depend upon the fact that he had had a personal experience with a rear view mirror, but upon the fact that in this manner he recalled to the jurors' minds the common knowledge above mentioned. The court promptly ruled: "It is not evidence at all * * * Well it is not evidence. Therefore they should not consider it as such." This ruling was quickly reinforced by Mr. Green, who disavowed any intention to testify, and who declared that his purpose was to assist the jury to "draw from those conditions that were surrounding the situation as they were at that time" the proper inferences. Possibly, if mirrors were intricate objects which jurors could not readily understand, Mr. Green's statement of his mishap could be deemed injurious to the defendant. But what is more commonplace than a mirror? Are we to assume that jurors are so ignorant of the everyday experiences of life, and so easily deceived, that verdict must be set aside because the prevailing attorney in a few words related an experience which he had with a mirror? Without doubt the jurors during their deliberations mentioned many little experiences which they had had with this common household utility. If an affidavit could be obtained to that effect, would we say that the verdict must be set aside? We believe that a conclusion is unwarranted that this case demands a reversal. The view, which we believe should be taken is well illustrated by the case of Dennis v. State, 139 Ala. 109 (35 So. 651), wherein a member of the negro race was charged before a Southern court with "shooting craps." The prosecuting attorney in his argument spoke thus:

"You gentlemen know the evils attendant upon these crap games, — a crowd of negroes with a bottle of whiskey in one pocket and a pistol in the other, get together to gamble, and you know what crimes grow out of these meetings."

Although there was no evidence that the defendant possessed a bottle of whiskey and a pistol yet the court held the argument nonprejudicial because

"In this instance the solicitor did not state as a fact in the case, that there was a bottle of whiskey or a pistol in the pocket of any one that played, but he was merely using what he said as to this matter, as an illustration of the evils that may grow out of gambling, and urging this as an argument in favor of suppressing the habit. The court committed no error in overruling the motion to exclude the language excepted to."

A reversal is warranted only when the appellate court is satisfied that the trial court has abused the discretion vested in it for the proper supervision of the argument: 2 R.C.L., p. 434, and 38 Cyc. 1502. A disinclination by appellate courts to interfere with the exercise of this discretion, and a reluctance to reverse where the trial court made rulings in an effort to keep the argument within proper bounds is shown by the authorities: Note, L.R.A. 1918D, 49. Since we are not satisfied that through any alleged failure of the trial court to supervise the argument the defendant's cause was materially prejudiced we do not believe that a reversal is warranted.

Before concluding, it may be well to add that nothing herein said should be construed as detracting from the power vested in the trial judge to properly supervise the arguments of counsel. Every litigant is entitled to a fair trial, and this result cannot be achieved if counsel is permitted to make statements to the jury of facts not testified to by any witness nor admissible in evidence. Trial judges do not need to be prompted by an objection before exercising their power. An extensive review of the cases in L.R.A. 1918D, 25, is accompanied by the comment: "There does not seem to be a single case, civil or criminal, in which complaint was made to a reviewing court that the trial judge interfered when counsel for the defeated litigant was addressing the jury, to prevent his stating facts not in evidence or inferences from unproven facts, where the trial court was not commended for doing his plain duty in the circumstances." In the present case the trial court should have prevented Mr. Green's relation of his personal experience; but its failure to do so does not constitute reversible error.

Since the contentions of appellant reveal no reversible error the judgment of the circuit court is affirmed.

BEAN, C.J., BROWN, BELT and CAMPBELL, JJ., concur.

KELLY and RAND, JJ., dissent.