Dunning v. Northwestern Electric Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Personal injury action by Merton C. Dunning against Northwestern Electric Company, a corporation. From a judgment for the plaintiff, the defendant appeals.

AFFIRMED. This is an action for damages to recover for personal injuries sustained by plaintiff between 1:00 and 1:30 A.M. on December 21, 1945, while driving a Dodge pickup automobile in an easterly direction on Mill Plain Road, a public highway, at a point thereon just east of the city limits of Vancouver, Clark County, Washington.

Plaintiff claims that defendant negligently permitted a certain power pole on its power line on the south side of said highway to remain in use after it had become rotten, old, worn and defective; that said pole had fallen across and obstructed said highway at said point; that plaintiff's automobile collided therewith and as a result of said collision plaintiff sustained a permanent injury in that the cervical vertebrae of his spinal column were compressed and fractured. From a judgment in favor of plaintiff, in the sum of $20,000, defendant appeals.

Plaintiff's version of the facts is materially different from that of defendant's witness who said that he saw the collision. The time and place of the accident are not in issue. The controlling issue arises with respect to the course taken by plaintiff when the collision occurred.

Plaintiff testified that at about one o'clock in the morning of December 21, 1945, during darkness, while it was misty, the wind was blowing a little and there was very little fog, he was going east on his right or southerly side of Mill Plain Road driving his 1943 Dodge pickup automobile at a rate of speed at about 15 miles per hour and, after he was over the top of Harney Hill, he saw something about 10 feet away from him that looked like a pole lying across the road diagonally in a northwesterly direction; that he turned to the right or southerly to go around it and miss it and, as he couldn't get around it, he then turned his car to the left or northerly direction whereupon the car hit the pole at an angle, the two front springs and bumper hit the pole, jumped, and his automobile up-ended toward the right or southerly side of the road, made a flop, a kind of somersault and lit on top of the cab. Plaintiff was thereby injured as he claimed in his complaint. He then got out of the car assisted by a man, who at the time inquired if any one else was in the car. Shortly after taking note of the pole lying across the road broken in three pieces and the condition of the butt end of the pole, plaintiff went home.

Defendant's version was given by witness Sullivan and is to the effect that, before plaintiff reached the place of the collision and while the pole in suit was still standing, plaintiff either drove his car southerly off of the paved portion of the highway and caused it to collide with the metal guard protecting the guy wire that extended westerly from the top of the pole in suit to the ground, or plaintiff caused his car to strike the pole itself, thereby bringing upon himself and his car the resultant damage.

The metal guard that was attached as a protecting device to the guy wire was not introduced in evidence; but there is testimony in the record that it was bent until it had the appearance of the letter "V" and was deemed by the repair men to be worthless.

Plaintiff denied that the pole was standing when his car hit it. He also denied that his car struck the metal guard protecting the guy wire attached to the pole in suit. Two officers, who examined plaintiff's car at the garage, where it had been impounded, testified that there were no marks upon its front bumper or front axle as if a contact had been made by striking some metal appliance as the metal guy guard. These officers also testified that the radiator was not crushed in.

As to the manner in which the accident occurred, the trial jury evidently accepted plaintiff's version; and, as there is substantial testimony supporting the jury's finding, this court cannot hold otherwise.

In conformity with the view that plaintiff's version of the occurrence is true, the doctrine of res ipsa loquitur applies. This is a rule of evidence. See Cunningham v. Oregon Farmers'Institute, 168 Or. 452, 124 P.2d 304, and cases there cited. Under this principle, where that which causes an injury is under the management and control of the defendant and the accident is such as in the ordinary course of things does not happen, if those who have the management and control use proper care, it affords reasonable evidence, in the absence of explanation, that the accident is the result of want of care. In plain English the thing itself speaks.

Stating it conversely, if the only explanation of defendant is disproven, the result is to impute want of care or negligence to defendant. The application of this maxim does not shift the burden of proof from plaintiff to defendant; it merely places the duty upon defendant in the first instance to offer testimony tending to overcome the presumption or inference that otherwise the jury would be permitted to apply. The burden of proving the alleged negligence of defendant by a preponderance of the evidence remains throughout the trial upon plaintiff as the party holding the affirmative of such issue. Phillipsen v. Hunt,129 Or. 242, 247, 276 P. 255; Francisco v. Circle Tours SightseeingCo., 125 Or. 80, 265 P. 801; Coblentz v. Jaloff, 115 Or. 656,239 P. 825.

The record discloses that the pole in suit was installed 14 years before this accident occurred. There is no evidence disclosing that any inspection of the pole was made by defendant at any time thereafter. Nichols v. City ofMinneapolis and Erie Tel. T. Co., 33 Minn. 430, 23 N.W. 868;Shawnee Light Power Co. v. Sears, 21 Okla. 13, 95 P. 449, 455,456; Mayes v. Kansas City Power Light Co., 121 Kan. 648,249 P. 599, 600; Juchert v. California Water Service Co., 16 Cal. 2d 500, 106 P.2d 886, 894.

As to the question presented by defendant's assignment of error No. 5, whether the award of $20,000 to plaintiff by the jury is excessive, we must first determine what the jury evidently determined to be the actual injury sustained by plaintiff. In other words, whether the jury could have found from the testimony that plaintiff was permanently injured in that he sustained a fracture of his cervical vertebrae.

Dr. Alan Welch Smith, a witness in behalf of plaintiff, testified that he had been practicing his profession as a physician and surgeon for about 52 years specializing in general surgery.

In examining the X-ray plate, plaintiff's exhibit No. 7, the same being an X-ray of plaintiff's cervical spine, Dr. Smith testified as follows:

"A You see here, is the base of his skull and here is the trouble in here, between the atlas and axis.

Q What trouble does that show?

A That trouble is where his neck is broken."

Referring to another X-ray plate, known to this record as plaintiff's exhibit No. 11, Dr. Smith testified as follows:

"Q What does that show?

A Well, that is the best one I have seen yet. Now, you see here is this odontoid process here, that little tip-like looking bony connection between the atlas and the axis, and here on the side (indicating) it shows the disturbance which it has created, and that has injured his spinal cord and caused that paralysis."

Continuing, Dr. Smith testified as follows:

"Q Now Doctor, what would you say as to whether or not the injuries you have described are of a permanent nature or temporary, in your opinion?

A In my opinion this man is absolutely all through.

Q What does that mean?

A Permanent total.

Q Permanently and totally disabled?

A Yes, sir.

Q Do you think he will ever be able to perform any work?

A No, sir."

As an appellate court, we cannot say that the jury was unwarranted in finding that plaintiff suffered an injury resulting in permanent total disability.

It was stipulated that a man 45 years of age has a life expectancy of 24.54 years.

In view of the testimony above quoted, the stipulation as to life expectancy and the undisputed fact shown by plaintiff's testimony, that at the time of the accident in suit plaintiff was 45 years of age, and the further statement by plaintiff that before he was injured, he had an earning capacity of $275 per month, we cannot say that the award of the jury was excessive.

The following are citations to thirteen of the many cases wherein the courts have held that similar awards were not excessive: Olden v. Babicora Development Co., 107 Cal. App. 399, 290 P. 1062, 1072; Perry v. D.J. T. Sullivan, Inc., 219 Cal. 384, 26 P.2d 485; Hansen v.Standard Oil Co., 55 Idaho 483, 44 P.2d 709; Powell v. StandardOil Co., 168 Minn. 248, 210 N.W. 55; Rose v. Missouri Dist.Tel. Co., 328 Mo. 1009, 43 S.W.2d 562, 81 A.L.R. 400; Lund v.Olson, 182 Minn. 204, 234 N.W. 310, 75 A.L.R. 371; PostalTelegraph Cable Co. v. White, 190 Ark. 365, 80 S.W.2d 633;Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223,141 So. 758; Stein v. Rainey, 315 Mo. 535, 286 S.W. 53; Frese v.Wells, (Mo. Sup. Ct.) 40 S.W.2d 652; Hoelzel v. Chi. R.I. P.Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Paul v. Atlantic RefineryCo., 304 Pa. 360, 156 A. 94; Key v. Carolina N.W. Ry. Co.,165 S.C. 43, 162 S.E. 582; Appeal dismissed, 284 U.S. 691,52 Sup. Ct. 139.

Defendant's first assignment of error is to the effect that the court erred in denying defendant's motion for a directed verdict; and, after verdict, in denying defendant's motion for a judgment in its favor notwithstanding said verdict. Based upon what we have said, we hold that the trial court did not err in denying said motions.

In the case of Pennsylvania R. Co. v. Chamberlain,288 U.S. 333, 53 Sup. Ct. 391, 77 L. Ed. 819, 824, cited by defendant, the administratrix of Charles Frederick Chamberlain, deceased, instituted the action against the railroad company alleging that his death was caused by a collision of a string or cut of nine cars going down an incline behind a cut of two cars upon which deceased was riding. One witness testified that he heard a crash and at a distance saw what appeared to be a conjunction with the nine cars in the rear with the two cars upon which deceased had been riding. Three witnesses, however, who were riding the nine-car string, testified positively that no such collision occurred. Manifestly, the inference of this one witness was deemed insufficient to constitute substantial testimony, it being drawn from the fact that at a distance the witness had heard a crash, and his inference was that such crash was caused by the impact of the nine-car string upon the two-car string.

Horn v. National Hospital Association, 169 Or. 654,131 P.2d 455, is a case wherein plaintiff instituted an action against the hospital association for alleged malpractice by one of its surgeons.

Defendant's surgeon diagnosed plaintiff's case as appendicitis and an operation was performed. Plaintiff at the time was also suffering from calcified gall bladder and gall stones.

The doctrine of Horn v. National Hospital Association, supra, is that where there are two or more possible causes of injury for one or more of which defendant is not responsible, plaintiff in order to recover, must show evidence that the injury was wholly or partly the result of that cause which would render defendant liable. Diagnosing plaintiff's case to be one of appendicitis and operating therefor was not the cause of plaintiff's gall bladder ailments.

In the case at bar, the plaintiff was injured either by colliding with the pole or its guy wire protection, or by colliding with the pole after it had fallen across the highway. The jury believed plaintiff's story to the effect that he collided with defendant's fallen pole across the highway.

Kukacka v. Rock, 154 Or. 542, 61 P.2d 297, discloses that defendant Rock had driven a car with one Dr. Adams as one of his guests. Rock's car overturned. Dr. Adams attempted to signal plaintiff's car to stop; but, instead of stopping, plaintiff disregarded the signal and ran into Rock's car and was hurt. The court held that Rock was not liable, applying the principle that where the only reasonable deduction from the evidence in negligence cases is that the injuries sustained were not the natural and probable consequences of the alleged negligence, the question of proximate cause becomes a matter of law for the court.

In the case at bar, the alleged negligence of defendant consisted in failing to sustain and maintain the support and strength of its pole.

Whether this was the proximate cause of plaintiff's injury depended upon whether the pole was lying across the traveled part of the public highway in such a way that when plaintiff attempted to negotiate such highway, he sustained such injury; or, instead of such a state of facts, plaintiff actually drove his car against either the guy guard or the pole itself in such a way as to be injured and, incidentally, to cause the pole to fall. There was direct testimony given by plaintiff that the fallen pole obstructed the highway and caused his injury. There was a letter referring to the accident written by defendant's attorney to plaintiff in which reference is made to December 21st "when you ran into a fallen pole in Clark County, Washington". Enclosed with this letter was a memorandum or remittance advice that identified a check also enclosed, upon which memorandum reference is made to an injury sustained by plaintiff when he "ran into a fallen pole at the top of Harney Hill (12-21-45) on Mill Plain Road, Clark County, Washington".

That feature of the case does not depend on inference.

We cannot agree with defendant that plaintiff's version is so unreasonable that it should be disregarded as contrary to all experience, reason and truth. The jury must have believed it and we are not warranted in overruling the judgment of the jury thereupon.

We are impelled to say that the jury adjudged and determined what the facts were "by the usual and ordinary intellectual processes; that is, by applying the thinking faculties of their minds." In so doing, the duty enjoined by Campbell, J. in Jerkev. Delmont State Bank, 54 S.D. 446, 223 N.W. 585, 72 A.L.R. 7, and quoted in Wigmore on Evidence (3 Ed.) Sec. 2495 was duly performed.

Morser v. Southern Pacific Co., 124 Or. 384, 262 P. 252, is a case where plaintiff was struck by an electric train while he was crossing its track. We quote from the opinion:

* * * "Plaintiff says that when he was about seven feet from the track he looked and listened for a train, but neither saw nor heard one. Is this testimony not utterly preposterous and unreasonable? Would any reasonable person believe that a man in full possession of his faculties could look and listen under such circumstances and not be aware of an approaching train? The physical facts absolutely and conclusively refute the bare statement of plaintiff that he neither saw nor heard the train, assuming that he looked and listened."

The difference between the sound, sight and situs of a moving locomotive and train of cars upon a railroad track when sought to be seen and heard by a man listening and looking while standing within seven feet of the track, and the silent quietude of a broken and partly decayed pole lying prostrate athwart a public highway over which an autoist is traveling at the rate of 15 miles per hour, is impressively obvious and definitely distinguishes the Morser case from the case at bar.

Defendant, in the opening brief, quotes as follows from PowderValley State Bank v. Hudelson, 74 Or. 191, 144 P. 494, to-wit:

* * * "By ``evidence to support the verdict' is meant some legal evidence tending to prove every material fact in issue as to which the party in whose favor the verdict was rendered had the burden of proof."

We venture to supplement that statement by quoting from the same opinion:

* * * "As stated supra, we have no authority to determine in whose favor the evidence preponderated. We are limited in determining whether there was any evidence to support the finding of the jury. We find that there was some legal evidence to support the verdict, and that the motion for an instructed verdict was properly denied." Powder Valley State Bank v. Hudelson, supra, p. 199.

Vale v. State Industrial Accident Commission, 160 Or. 569,576, 86 P.2d 956, is also cited by defendant.

In that case, claimant's husband was an employee of Anliker Brothers, a partnership engaged in logging operations. The husband died on January 15, 1937. The cause of his death was diagnosed as lobar pneumonia. The court held that there was no substantial evidence that deceased became contaminated while employed by Anliker Brothers.

We cannot say that plaintiff's version of the facts in the case at bar does not constitute substantial evidence. The jury in the trial court, who saw and heard plaintiff, as well as the other witnesses testify, have found by their verdict in plaintiff's favor; it is not the province of this court to substitute its judgment for that of the jury upon questions of fact.

Aune v. Oregon Trunk Ry., 151 Or. 622, 51 P.2d 663, is a case where plaintiff's warehouse alongside defendant's railway tract was burned by a fire started by hobos in defendant's freight cars. The complaint was construed by the court to the effect that the hobos were not invitees of defendant. We quote from the opinion:

* * * "This case, therefore, comes within the general rule that where, between defendant's act and the injury, there has intervened an independent illegal act of a third person without which the injury would not have happened, the latter will be held to be the proximate cause of the loss and the defendant will be excused: Watson on Damages, Sec. 12."

In the case at bar, it is not contended that there was an intervening, independent, illegal act that caused plaintiff's injury. The only claim made in that regard by defendant is that plaintiff drove his car either against an upright pole or upon its metal protected guy wire and thereby injured himself.

Defendant also cites the case of Masonite Corporation v.Hill, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157. The holding of that case is that an inference upon an inference will not be permitted to prevail when the fact sought to be established by such an inference upon an inference is capable of more satisfactory proof by direct, positive or demonstrative evidence within the reasonable power of the party holding the burden to produce. There, a swimmer sought damages, because of an infection in his limbs, on the ground that defendant's effluent from its masonite factory had contaminated the water of Laurel Creek, and when plaintiff bathed therein at a point 45 miles south of the intake from defendant's factory he became poisoned thereby. The Mississippi court pointed out that the determination whether the water at the point designated had been contaminated, and, if so, the nature of such contaminating agency could at nominal expense have been obtained by means of a chemical analysis of such water. In that case, the doctrine of res ipsa loquitur had no application, because defendant did not have sole and exclusive control and management of the 45 miles of running water of Laurel Creek intervening between the masonite factory and the place of plaintiff's alleged contamination.

Defendant's assignment of error No. 2 is as follows:

"The court erred in admitting in evidence, over the objection of defendant's counsel, a letter and enclosures (Exhibit 16) directed to plaintiff by counsel for defendant in connection with an attempted compromise of plaintiff's claim, insofar as the references therein to ``a fallen pole' were permitted to go to the jury as a declaration of the defendant against interest."

Hereinabove, we have referred to this letter and its enclosures.

The letter in question reads as follows:

"August 6, 1946. Mr. M.C. Dunning, Vancouver Washington.

Dear Sir: I hand you herewith Northwestern Electric Company's check No. 5210 in your favor for $250.00 as a payment on account of the injuries sustained by you on December 21, 1945, when you ran into a fallen pole in Clark County, Washington. I have had the form of notation attached to the check changed so that it shows that the check is not made as a final payment or final settlement. The treasurer of Northwestern Electric Company informs me that it is impossible to change the notation on the face of the check which reads as follows: ``In full settlement of account as noted above. If not correct, return the statement of difference', as the bank would consider the check mutilated if this statement was crossed out and would not cash the check. However, as one of the attorneys for the company, I am authorized to assure you that you may safely cash the check and the company will never contend that it is made as final payment, for it is not so intended.

Very truly yours, Henry S. Gray."

The enclosures in the letter consisted of a canceled check bearing No. 5210, dated July 3, 1946, for $250.00, and a paper bearing the title "Northwestern Electric Company Remittance Advice". The paper contains the following statement:

"Payment on account of injury sustained December 21, 1945, when Dunning ran into a fallen pole at the top of Harney Hill, Mill Plain Road, Clark County, Washington. This check is not in final settlement of this claim."

It will be noted that there is no reference in the foregoing letter to an offer of compromise; but treating it as one step in a contemplated compromise, we think that our statute renders the statement therein with respect to "a fallen pole" admissible.

The applicable provision of the statute is as follows:

"An offer of compromise is not an admission that anything is due; but admissions of particular facts, made in negotiation for compromise, may be proved, unless otherwise specially agreed at the time." Section 10-302, O.C.L.A., Vol. 2 p. 166.

We think no error was committed in receiving the above letter in evidence. In passing it may be noted that a letter from Mr. D.P. Lamb, Claim Agent, of defendant bearing date of January 2, 1946, to plaintiff was received in evidence and marked plaintiff's Exhibit 14. Therein the damage to plaintiff's car was referred to as having occurred "when you struck the pole lying in the highway at Harney Hill".

Defendant's third assignment of error is based upon the failure of the trial court to withdraw from the consideration of the jury the following specification of negligence appearing in subdivision (b) of paragraph V of plaintiff's complaint, viz:

"Defendant carelessly and negligently failed and neglected to properly brace and maintain said pole with guy wires in order to hold the same erect and keep the same from falling over and upon and across said highway and thereby obstructing the same."

No error was committed by the trial court in submitting the above specification of negligence to the jury. It is a certainty that the pole in suit was not held erect or kept from falling over and across the highway. The jury was justified in finding that plaintiff did not cause it to fall. If it had been sufficiently braced and maintained, it would not have fallen.

Defendant's fourth assignment of error is based upon the trial court's failure to give the following instruction requested by defendant:

"Under the law of Washington, it is unlawful to operate or drive any vehicle over or along any pavement or gravel or crushed rock surface on a public highway with one or more wheels off the roadway thereof, except for the purpose of stopping off such roadway, or returning thereto after having so stopped, and, if you find from the evidence that the plaintiff was driving with one or more wheels of his vehicle off the pavement at the time the accident occurred, with no intention of stopping off the roadway, he was violating the highway code of Washington and was guilty of negligence per se. If you find that the plaintiff was negligent in that regard, and that such negligence was the proximate cause of his injury, the plaintiff cannot recover in this action."

Defendant's specifications of negligence attributed to plaintiff in defendant's answer do not include the charge that plaintiff operated or drove his car along any pavement or gravel or crushed rock surface on a public highway with one or more wheels off the roadway thereof. Neither does plaintiff's case in chief show that he drove his car in that way.

Moreover, the learned judge of the trial court in his charge to the jury included the following instructions:

"Under the law of Washington, every person operating or driving a vehicle of any character upon the public highways of that state is required to operate the same in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of the traffic, weight of vehicle, grade and width of highway, condition of surface and freedom of obstruction to view ahead, and consistent with any and all conditions existing at the point of operation, so as not unduly or unreasonably to endanger the life, limb, property or other rights of any person entitled to the use of such public highways. Violation of this law would constitute negligence in and of itself."

"The defendant company had the legal right to maintain its poles, wires, guys and anchors at the points and in the positions in which the same were located immediately prior to the falling of the pole involved in the accident as shown by the evidence. A public utility is under no obligation to maintain its facilities so as to withstand the impact of motor vehicles which depart from the paved surface of adjacent roadways. And if you find from the evidence that plaintiff permitted his vehicle to leave the paved surface of the roadway and collide with defendant's pole or guys, causing them to fall down, the plaintiff cannot recover in this action for any injury sustained by him as a result of such collision."

In the light of the foregoing instructions, defendant's fourth assignment of error is untenable.

Defendant's assignment of error No. 6 is as follows:

"The verdict was against law, as expounded to the jury through the instructions of the Court."

The reason prompting us to hold that no error was committed by the trial court in denying defendant's motions for a directed verdict and after verdict for judgment notwithstanding the verdict, impels us to hold also that assignment of error number six is untenable.

The judgment of the circuit court is affirmed.

HAY, J., concurs.

ROSSMAN, C.J., specially concurs in an opinion.

LUSK, J., concurs in the result.