Phillips v. Creighton , 211 Or. 645 ( 1957 )

BOSSMAN, J., dissenting.

I dissent, and, since the defeat of the plaintiff’s action has tragic consequences for the crippled, innocent victim of the accident which happened September 19, 1950, upon the country road mentioned in the majority opinion, I feel impelled to state my reasons. The record convinces me that the testimony of James Gr. Lauder-back concerning speed was admissible. His testimony, as I shall presently show, establishes that the car which he saw was Glosser’s. Next, I am satisfied that error was committed when the instruction upon the subject of lookout, which the plaintiff requested, was not given. Notwithstanding the fact that Glosser was driving with the setting sun in his eyes, the trial judge gave no instruction whatever upon the subject of lookout; in fact, he did not even tell the jury that a motorist must maintain a lookout; he ignored the subject.

I point out that no witness whose testimony was received saw the Gosser car in motion and, accordingly, no evidence concerning its speed was given by anyone who saw it in operation. However, Gosser’s widow, as a witness for the defendant, was permitted to testify that a few hours after the accident Gosser told her that he “was going less than forty.” That self-serving statement was submitted to the jury as evidence of the car’s speed. As I have said, no effort was made by the instructions to indicate to the jury that a motorist must be on the watch for things ahead. Evidence as to speed and an instruction upon the duty to maintain a lookout were vital to a just determination of this case, as I shall presently show.

James G. Lauderback, above mentioned, was plowing his field when he saw a car going by at a rate of speed which attracted his attention. The car was about three-fourths of a mile away, but the lay of the land was such that Lauderback had a good view. The majority state that the casualty occurred in a small valley. Possibly the word gully would better describe the little declivity in the surrounding land. The distance from one end of the gully to the other was only 1,000 feet. The car, after traveling westerly for a while over the tableland, entered the gully, or miniature valley, by going down the decline. Like the road on the tableland over which it had just passed, the road down the decline was virtually straight. The distance down the decline was possibly 500 feet. Having covered that distance, Gosser entered upon the incline which would take bim to the tableland west of the gully. The incline, like the decline, was about 500 to 600 feet long. Until it reached the incline, the ear which Lauderback saw was constantly in view, but shortly after it began to ascent the incline an orchard hid it from his view. It was out of his view for about 150 feet when he heard its tires “howl.” The Phillips home is about 250 feet from the bottom of the gully. A moment or two after the car which Lauder-back saw had disappeared from view he heard “the tires howling on the pavement like somebody was trying to stop.” He swore that the sound came “right toward Phillip’s” home.

The question before us is: does the evidence sufficiently indicate that the car which Lauderback saw was Gosser’s so that Lauderback’s testimony should have been received. Let us remind ourselves that a litigant need not establish certitude or prove a contention so convincingly that all will say is it indubitably true. If the law demanded infallibility, none could meet its demands. It is satisfied with probabilities and reasonable certainty.

The car which Lauderback saw was upon Geer road, being the same thoroughfare upon which Gosser was driving when he struck the little child, James Phillips, in whose behalf this action was brought. Gosser was driving west at the time of the casualty and that was the direction in which the car was moving which Lauderback saw. Gosser applied his brakes when he was in front of the Phillips property and thereby made such a loud sound that the little boy’s mother heard it in her kitchen and rushed outdoors. The car which Lauderback saw made a sound when it reached the Phillips property which Lauderback described in this way: “The tires howling on the pavement like somebody was trying to stop.”

I shall now mention another fact which bears upon the subject matter of inquiry: Was the car which Lauderback saw Gosser’s? The majority, referring to the skidmarks which the Gosser car left upon the pavement in front of the Phillips property, say:

“* # * Nor is there any evidence that there were no other skidmarks on the highway that evening except those leading to the Gosser car.”

Rnssell L. Haynes and James A. Finney, officers of the Oregon State Police, reached the scene of the accident a few moments after the casualty and made a careful investigation. They took note of the skidmarks upon the pavement, the shoulders of the roadway, the adjacent weed patches, the glass upon the pavement, the damage to the Gosser car, the direction of the road and the distances from the scene of the impact to such objects as power poles, the driveway and the Phillips home. In order to achieve accuracy, the two officers used a measuring tape. Finally, Haynes drew two sketches of the scene. One, which he entitled “Profile,” represents a cross section of the gully. It is a portrayal of the decline and the incline from the point of view of one who is standing to one side. It has the appearance of a crescent. The other sketch, being the larger of the two, shows the road, the weeds, the skidmarks, etc. The skidmarks and the distance from them to various objects is the principal subject matter of this sketch. In view of the fact that the majority suggest that the pavement in front of the Phillips property may have shown more than one set of skidmarks, it is pertinent to take note of the fact that Haynes’ carefully prepared sketch shows only one set of skidmarks. The officers testified that they carefully examined the road before the drawing was made, and it is apparent from this testimony that they took note of its characteristics for a considerable distance. The set of skidmarks shown on Haynes’ sketch lead directly to the Gosser car, and no one questions but that set was made by the Gosser vehicle. One of the two marks was 62 feet long and the other 44 feet.

The third day after the misfortune had taken place, William R. Carter and Ms wife visited the scene of the mishap and, while walking along the road, took a series of photographs showing the entire length of the roadway through the little valley. Some of their pictures overlap others. The photographs, 16 in number, are eight by ten inches in size. In all instances the photographs were so taken that they show the pavement clearly. The eye has no trouble whatever in picking up in the photographs the yellow line, pavement patches, oil and other blemishes. The first of these pictures began at the easterly point where the road dips down into the miniature valley, and the last was taken where the roadway has ascended the westerly incline. As these photographs advance along the westerly incline near the Phillips property, they show the skidmarks which were made by the Gosser ear. A careful perusal of the photographs fails to show any other slddmarks whatever. While the photographs were being introduced in evidence and the Carters were giving their testimony, no claim was made by the defendant that the photographs showed any sMdmarks other than those made by the Gosser ear or that they omitted sometMng wMch should have been shown. In fact, throughout the trial the defendant never made an intimation that any sMdmarks other than Gosser’s were upon the pavement.

The boy’s father testified at length concerning the roadway through the miniature valley, the sMdmarks and other items of interest. In so doing he gave no indication that in that area of about 1,000 feet he had found any sMdmarks except those which the Gosser car had made.

Prom the foregoing the jury would surely have been justified in believing that immediately following the casualty there was only one set of sMdmarks upon the pavement in the little valley and that it was made by the Gosser car.

A previous paragraph of this opinion mentions the fact that the boy’s mother, while in her kitchen, heard the screeching sound made by skidding tires and upon rushing to the road discovered that one of her children had been run down. She mentioned only one screech of that ldnd and, accordingly, it may be permissible to infer that only one car made an abrupt stop upon the Geer road near the Phillips property. Lauderbaek, too, heard only one sound made by slddding tires. After he had described the noise, the following occurred:

“Q Well, did you hear anything more at that time?

“A No.”

Further examination of Lauderbaek developed the fact that the speeding car which he had described was the only one which he saw at that time. The boy’s mother was not asked a question similar to the one put to Lauderbaek about hearing other noises, but she left her home immediately with the injured boy for a hospital. Gosser, however, remained upon the Phillips property for a considerable period and could have seen and heard any car which skidded its tires in that vicinity. No one claims that he saw or heard an incident of that ldnd.

The above being the facts, it is clear that the record shows that the part of Geer road which is material to this case contained only one set of skidmarks.

The above shows that

(A) Gosser was (1) driving westerly on Geer road September 19,1950, in the late afternoon; (2) Gosser’s course on Geer road took him in front of the Phillips property; (3) when Gosser reached a point in front of the Phillips property he applied his brakes and thereby made a lond sonnd; (4) the application of Gosser’s brakes made a set of skidmarks upon the pavement in front of the Phillips property which conld be plainly seen for several days thereafter; (5) only one screeching sonnd was heard at abont the time when Gosser skidded his tires.

(B) The car which Landerback saw was (1) driving westerly on Geer road September 19, 1950, in the late afternoon; (2) the course of the car which Lauderback saw took it in front of the Phillips property; (3) when the car which Lauderback saw reached a point in front of the Phillips property it made a sound which that witness described as “the tires howling on the pavement like somebody was trying to stop;” (4) no other sound made by skidding tires was heard at about that time; (5) only one set of skidmarks was found upon the pavement in the vicinity of the Phillips property.

The question now is: are the facts which we have denoted with the letter B relevant to establish that the car there described is the same car which is the subject of paragraph A.

Wigmore on Evidence, § 32, gives us the following test of relevancy:

“" * * Does the evidentiary fact point to the desired conclusion (not as the only rational hypothesis, but) as the hypothesis (or explanation) more plausible or more natural out of the various ones that are conceivable? Or (to state the requirement more weakly), is the desired conclusion (not, the most natural, but) a natural or plausible one among the various conceivable ones.”

McCormick on Evidence, p. 318, § 152, proffers the following test of relevancy:

“* * * It is believed that a more modest standard would better reflect the actual practice of the courts, aud that the most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidenced”

McCormick shortly resumes in this vein:

“Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.”

From Klingback v. Mendiola, 138 Or 234, 6 P2d 237, the following is taken:

“The defendant assigns error in the admission by the court of the testimony of plaintiff that the defendant cut and harvested the hay and hauled it to his own ranch across the river. This testimony was competent as a circumstance bearing upon the contract between the plaintiff and defendant. Any evidence which tends to render the fact probable or improbable is relevant: * *

Carruthers v. Phillips, 169 Or 636, 131 P2d 193, declares :

“# * * Plaintiff was entitled to show that the defendant had opportunity to do the act charged. This she did show. She was entitled to go further and show that the defendant was the Only one who could have done the act charged. This, too, she supported by her testimony. * * * When the doing of an act by the defendant is charged, evidence is admissible to show that the defendant had opportunity to do it, even though his opportunity be not shown to be exclusive, * * *.”

In Trook v. Sagert, 171 Or 680, 138 P2d 900, we pointed out that if a witness knows something, which, under the common rules of logic, will advance the search for the truth, it is admissible.

The testimony which we have reviewed shows that only one screech made by skidding tires was heard, and that only one set of skidmarks conld he found upon the pavement. It is conceded that Gosser’s car skidded when it was in front of the Phillips property and that it made skidmarks upon the pavement at that place. In short, it is conceded that the skidmarks which the witnesses described were made by the Gosser car. Accordingly, in order to dispose of the car which Lauder-back saw, we must take one of the three following courses: (1) it was a myth; (2) although Lauderback heard “the tires howling on the pavement like somebody was trying to stop,” actually the car left no skid-marks on the pavement; or (3) the car which Lauder-back saw was Gosser’s and the loud noise which he heard came from that car, and the slddmarks above described were made by it.

No court would have a right to reject Lauderback’s testimony as a myth. A court can take judicial notice of the fact that when a speeding car abruptly applies its brakes upon a hard-surfaced pavement it makes a loud noise of the character described by Lauderback, and its tires leave skidmarks.

The problem which the trial judge faced when Lauderback’s testimony was tendered was not to resolve with finality for the court whether the car which Lauderback saw was, in fact, Gosser’s; the tender required the trial judge to go no further than to determine whether Lauderback’s testimony was relevant and whether it possessed sufficient merit to warrant its submission to the jury. Similar problems frequently occur in criminal cases when the state tenders proof of a conspiracy, dying declaration or a confession. The judge in such instances goes no further, if he rules for the state, than to hold that prima facie the dying declaration or the confession, as the case may be, is admissible. In his instructions to the jury, he submits to that body the ultimate problem of determining whether or not the contested evidence should be accepted as the truth.

In the present instance, the ruling by the majority pertains, not only to a preliminary matter affecting admissibility, but it excludes from the jury’s consideration an item of evidence which went to the heart of the case and which was one of the most important the plaintiff possessed. The following is taken from McCormick on Evidence, p 124:

“* * * These are the cases in which it happens that the preliminary fact-question on which competency of evidence or witness depends is also one of the ultimate disputed fact-issues which the jury would normally decide. Examples are the cases of prosecution for bigamy where the first marriage is disputed, the second wife is offered as a state’s witness, and the defendant objects under the statute disqualifying the wife to testify against her husband. Another example is the situation where the plaintiff sues on a lost writing; the defendant contends that it was not lost because it was never in existence. When the plaintiff offers as secondary evidence a copy of the alleged writing, logically it seems that to decide the preliminary question of loss, the judge would have to decide the ultimate issue of whether there was an original. Some of the decisions even in these eases of coincidence with an ultimate issue, steadfastly adhere to the traditional view that the judge decides finally the preliminary fact. Others have adopted what is probably a more acceptable accommodation of powers of judge and jury. In these cases of coincidence they direct the judge if he finds that the offering party has given evidence on the preliminary question from which a jury could reasonably find in his favor, to admit the offered evidence or witness.”

Without resort to further analysis, I express my belief that Lauderback’s testimony was admissible (State v. Moore, 32 Or 65, 48 P 468) and that error was committed when the defendant’s objection to it was sustained.

I also believe that the error thus committed was material. Lauderback’s testimony, if received, would have indicated that Grosser was driving “plenty fast * * * fifty miles an hour easily” upon a pavement which was rather narrow and when “the sun was in my eyes.” The words in quotation were used by Grosser in explaining to more than one person the condition he faced as he drove along the road. The sun was about to set and was slightly to the left of the roadway. The error was doubly material in view of the fact that Lauderback’s evidence was the only eye witness testimony that the plaintiff had on the subject of speed.

It is my conviction that material reversible error was committed when the trial judge failed to give to the jury the instruction defining a motorist’s duty to maintain a lookout, which the plaintiff requested. The requested instruction is quoted in the majority opinion. It appears permissible to infer that the trial judge knew of no infirmity in the instruction and had intended to give it, for, at the close of the instructions, counsel for the plaintiff addressed this inquiry to the trial judge:

“Was Plaintiff’s requested instruction Number 1 overlooked on the matter of lookout?”

and received this reply:

“I think I gave it, but you have an exception if I did not.”

The instructions used the term “lookout” only once. The following is the sole instance:

“Now, in the complaint, Plaintiff alleges that Defendant was negligent in some four specified particulars. He first alleges that the Defendant drove and operated the Chevrolet car without a lookout; * * *. Each of these specifications are denied.”

Neither the word “lookout” nor any equivalent of it was ever again used in the instructions.

In holding that the requested instruction was not a correct statement of the law, the majority say:

“The instruction requested by plaintiff makes no reference to the circumstances existing at the time and place of this accident. In addition, the second paragraph of the instruction would impose a duty on a motorist driving in a rural area to continuously look for persons moving onto or across the highway.”

Unless a motorist intends to look “continuously” for other travelers on the roadway, even though the thoroughfare is a rural one, he should pull to the side of the roadway and stop. No driver of a motor vehicle who does not purpose to look can be tolerated upon the road.

The paragraph which I quoted from the majority opinion says:

“The instruction requested by plaintiff makes no reference to the circumstances existing at the time and place of this accident.”

The instructions actually given to the jury stated:

“Negligence is the doing of some act which a reasonably careful, considerate and prudent person would not have done under like circumstances and conditions, or the failure to do that which a reasonably careful, considerate and prudent person would have done under like circumstances and conditions, having in mind the danger to be reasonably apprehended. The standard of care is always the conduct of an ordinarily prudent person who exercises care commensurate with the dangers to be avoided and the likelihood of injury to others.”

In view of the fact that that instruction was actually imparted to the jury, the precautionary admonitions upon the subject of attendant circumstances, which the majority mention, were given and did not need repetition in the requested instruction. However, the admonitions which qualify duties in terms of reasonableness were incorporated within the requested instructions, as we see from the following taken from the requested instruction: “to keep a reasonably constant and continuous lookout”, and, finally,

“If you find from a preponderance of the evidence that Mr. Grosser failed to keep a reasonably constant and continuous lookout as he drove on and along the highway, you must find that he was guilty of negligence.”

The second part of the requested instruction which says, “This is a continuous duty” merely called attention to the fact that the duty to keep awake and be on the alert is continuous. All duties, such as to use reasonable care, are continuous, and that fact is often stated to the jury in instructions.

I am aware of no infirmity in the requested instruction. Let us bear in mind that when instructions are given to the triers of the facts, the juror catches his law on the fly, and not by the process of slow, labored, critical perusal of the paper upon which the judge wrote his material. When read aloud, the requested instruction is easy of understanding.

It was doubly important in this case that the jury should have instructions upon the subject of lookout. Glosser drove down a narrow roadway, to the sides of which at places there were encroaching bushes and trees, which interfered with view and demanded care. He freely conceded to those who spoke to him later that the snn was in his eyes. The little child was hurled six feet into the air, so Grosser stated, and 30 feet ahead.

The judgment of the circuit court should he reversed.

I dissent.