Kohanek v. Rudie Wilhelm Warehouse Co. , 129 Or. 642 ( 1929 )

This is an action for damages, arising out of an accident in which the plaintiff suffered personal injuries. Plaintiff had judgment and defendant appeals.

On August 3, 1927, the plaintiff was the owner of a certain truck and was operating the same in hauling cement for J.A.C. Tait Company in the City of Portland. The defendant corporation was likewise engaged in the operation of a number of trucks in Portland and vicinity, using, among other trucks, trailer trucks conveyed by tractors.

Plaintiff alleges that on the above-mentioned date he was operating his truck in a southeasterly direction along Larrabee Street in Portland; that, at the same time, the defendant was operating a truck along that street in the same direction; that the respective trucks were traveling at about the same rate of speed, and that, for a distance of 600 or 700 feet before the accident happened, the front end of plaintiff's truck was alongside of the defendant's trailer, while the tractor was at all times in front of plaintiff's truck. He alleges that when they had passed the intersection of Dixon and Larrabee Streets, the defendant suddenly, without notice or warning, turned its tractor to the left and immediately in front of plaintiff, and that the plaintiff, in order to avoid a collision with the defendant's truck, immediately applied his brakes and brought his truck to a standstill. He says that at that time and place a street-car was proceeding in a northwesterly direction upon the northerly track of Larrabee Street; that two thirds of the length of the street-car had passed plaintiff's truck when the defendant's trailer struck the right front wheel of plaintiff's truck, throwing it against the rear portion of the street-car, with the result that plaintiff was thrown violently against the sides and floor of his truck and against the steering-wheel thereof, suffering severe personal injuries "to his back, shoulders, neck, arms, sides and chest, causing the muscles, tendons, nerves and ligaments of plaintiff's back and sides to be torn, twisted, wrenched, bruised and lacerated, including the breaking and tearing of plaintiff's diaphragm, and, in addition thereto, plaintiff suffered other internal injuries, including an abdominal rupture."

Plaintiff asserts that, by reason of his injuries he "has become wholly incapacitated to perform, and from ever becoming able in the future to perform," his vocation of drayage, or any other labor. He alleges that the proximate cause of the injuries sustained by him was the carelessness, recklessness and negligence of the defendant in suddenly, without notice, turning its truck sharply to the left and immediately in front of plaintiff's truck, thus striking plaintiff's truck and pushing it against the above-mentioned street-car; in failing to observe the position of plaintiff's truck upon Larrabee Street before turning its truck to the left; in failing to observe and keep a lookout for other motor vehicles, including plaintiff's truck; and in failing to exercise that degree of care and caution which should be expected of a reasonably competent and prudent motor vehicle driver under the attending circumstances.

Plaintiff asked for judgment in the sum of $32,500.

The defendant by its answer took issue with the plaintiff as to the ownership and operation of the truck that struck plaintiff as hereinbefore set out, and, for a further and separate answer, alleged that the proximate cause of the accident was the plaintiff's reckless driving; i.e., that the plaintiff was negligent in operating his truck at a high, dangerous and reckless rate of speed; in attempting to pass the "preceding truck" at a point where that truck met an oncoming street-car on Larrabee Street; in driving his truck into and against the street-car; in not having his truck under proper control, and in driving it on the left-hand side of the center of Larrabee Street.

Plaintiff's reply put in issue the new matter contained in defendant's answer.

As a result of the trial plaintiff had verdict for $7,500. The defendant, appealing, assigns error of the court in denying defendant's motion for directed verdict, and in refusing to give a certain instruction requested by defendant.

AFFIRMED. REHEARING DENIED. The requested instruction reads:

"I instruct you that the laws of the road laid down by the legislature provide:

"``The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.'

"And if you believe in this case that the plaintiff was traveling behind a motor vehicle and attempted to pass the same, and that in attempting to pass it is (was) necessary for him to drive to the left of the center of Larrabee Street, and at said time there was an oncoming street car within such close proximity as to prevent his truck from passing the preceding truck in safety, and by reason of him so attempting to pass said preceding truck he came into collision with the street car which was in such close proximity so that he could not pass in safety, then you are instructed that he was guilty of negligence per se, and if such negligence was the cause of the collision and his resulting injuries, if you find he did receive any injuries, then the plaintiff cannot recover and your verdict should be for the defendant."

This instruction is abstract. It would imply that the plaintiff drove his truck to the left of the center of Larrabee Street at a time when there was an oncoming street-car within such close proximity as to prevent his passing the preceding truck in safety. Moreover, the court did charge the jury that if the plaintiff contributed to his own injury "by driving his truck on the left-hand side of the center of Larrabee Street," as charged by the defendant, he could not recover. A careful reading of the proposed instruction clearly shows that it was not a proper one. Such an instruction would authorize a jury to speculate in determining the issues in any given case. It would direct the jurors to decide their case not upon the facts established by proof, but upon their "belief."

A case wherein a like situation is presented is the case ofRugenstein v. Ottenheimer, 70 Or. 600 (140 P. 747); and our court, in deciding the issue, announced the doctrine that jurors are not to base their verdict upon belief, surmise or speculation, but that the verdict must be the result of a careful consideration and comparison of all the evidence in the case. We adhere to this doctrine. See, also, 3 Brickwood Sackett, Instructions, p. 3084, note 7; 1 Randall's Instructions to Juries, p. 685, § 377.

The second point relied upon by the defendant is in the nature of an alibi. At the conclusion of the testimony in the case, the defendant moved for a directed verdict, upon the ground that the plaintiff had failed to identify the defendant's truck. The court denied the motion, and, we think, properly so. There is much testimony in the record from which the jury had a right to infer that the defendant's truck was the truck involved in the accident. Dallas Whittle, one of defendant's truck drivers, denies that he was the operator of the truck that indirectly caused the accident. He admits, however, that he was at the scene of the accident within a short time thereafter. The accident happened at 9:38 A.M., August 3, 1927. First testifying in that regard, he says that he was in the neighborhood of the accident about 9:45 A.M. on that day. Later on, he puts the time at about 10:15 A.M. But the record shows that defendant's truck driver was operating a tractor truck and was hauling pipe of different sizes on the morning in question. Whittle says that he was loaded with about 6 tons of pipe at the Luckenbach Steamship dock at about 9:00 A.M., and that in the front end of his truck he carried barrels. A number of plaintiff's witnesses identified the truck involved in the collision as a truck loaded with pipe and boxes, and some stated that it was loaded with bundles of steel and boxes or barrels. At all events, after a careful perusal of the evidence, we are satisfied that the court did not err when it denied the defendant's motion for a directed verdict. A trial court will direct a verdict only when there is a complete absence of proof on some essential issue, or when there is no conflict in the testimony and it is susceptible of only one construction. Where there is a dispute as to the facts, or where reasonable minds might draw different inferences, the question should be submitted to the jury: Saylor v. Enterprise Electric Co., 110 Or. 231 (222 P. 304, 223 P. 725). See, also, 1 Randall's Instructions to Juries, p. 191, § 104.

This case is affirmed.

AFFIRMED. REHEARING DENIED.

COSHOW, C.J., and BEAN and BELT, JJ., concur.