Weinstein v. Wheeler

Petition for rehearing denied March 17, 1931 ON PETITION FOR REHEARING (296 P. 1079) The brief accompanying the petition for a rehearing argues that our previous decision was in error for the following reasons: (1) The requested instruction, enunciating under what conditions a driver should stop his car when he observes a blind person directly ahead, was based upon a misapplication of the law; (2) any instruction upon the duty of stopping was inappropriate to this case because the complaint did not specify a failure to stop the automobile as a charge of negligence; and (3) the plaintiff did not except when the court modified plaintiff's requested instruction by adding the clause quoted in our previous decision.

We shall not repeat the reasons which persuaded us that the requested instruction, when applied to the situation described in the complaint, should have been given. After considering the matter once more we remain satisfied with the conclusion previously announced. The defendant seems to be alarmed at the possible result if the instruction should be given upon the retrial in the precise language in which it is now couched. It is not essential that a trial court should ever adopt as its own the language of a requested instruction. The substance, but not the phraseology, is the important item. The principle, embodied in a requested instruction, if applicable to the case, may always be expressed in the language of the presiding judge so as to make its application by the jury just.

It is true that the complaint did not itemize a failure to stop as one of the specifications of negligence. But it did aver that the defendant drove her car "in such an exceedingly careless, reckless, negligent, and dangerous manner." It specifically charged the defendant with excessive speed, failure to slow down, skidding for a distance of sixty feet, and a failure to place her car under her control. It seems to us that any defendant confronted with such a charge would readily understand that all details included within the above specification would likewise be relied upon by the plaintiff; for instance, turning aside or stopping. And that being true it was not necessary to add prolixity to the pleading by specifically naming the implied details. Reasonable clearness in pointing out the duty and its breach satisfies the requirement that the pleader shall use "plain and concise language." Moreover, all of the evidence showing the need, or its lack, of stopping was developed without objection. The first mention of the absence of a specification charging a failure to stop occurs in this petition for a rehearing. If we should be warranted in believing that the pleading was insufficient to include this charge, which we do not, yet section 1-911, Oregon Code 1930, demands that we disregard this error.

The fact that the plaintiff did not except to the court's modification of plaintiff's requested instruction did not preclude the trial court from granting a new trial when it discovered its error: Spokane County v. Pacific Bridge Co.,106 Or. 550 (213 P. 151).

The petition for a rehearing is denied.