Cox v. Jones

This is an action for damages incurred in an automobile collision. On the 17th day of April, 1930, at about 2 o'clock p.m. in Portland, Oregon, the plaintiff was driving a Ford coupe in an easterly direction on Madison street, and the defendant was driving a White automobile truck in a northerly direction on Front street. At the intersection of the streets named, their cars collided. As a result of the collision, plaintiff sustained serious injuries, particularly to her left hand. In her amended complaint plaintiff charges defendant with negligence in the following particulars:

Driving said truck at an excessive rate of speed, to wit: at a speed of approximately 35 miles an hour.

Failure to keep a proper or any lookout for traffic and failure to observe or see the automobile then and there being driven by plaintiff.

Failure to keep said White truck under proper or any control and failure to drive or turn the same so as to avoid hitting plaintiff.

Failure to reduce the speed of said White truck and failure to apply the brakes thereof.

Failure to give warning of his approach by the use of any horn, gong or other signal.

Defendant's answer to plaintiff's amended complaint denies the allegations of negligence charged therein; and as a further and separate defense alleges that plaintiff was negligent by suddenly approaching said intersection from the west at a high and reckless rate of speed while defendant who had slowed down his truck was proceeding into said intersection at a rate of speed not exceeding 10 miles per hour; that plaintiff carelessly, recklessly and negligently and at said high and reckless rate of speed drove into said intersection and immediately in front of and against defendant's truck.

Defendant further alleges that plaintiff was also negligent as follows, to wit:

(a) In failing to keep a proper or any lookout for vehicles and particularly defendant's truck.

(b) and (c) In failing to look out for or give the right of way to defendant's truck.

(d) In failing to have or exercise control over her automobile.

(e) In failing and neglecting to apply her brakes.

(f) In driving at a high and dangerous rate of speed and at a rate of speed in excess of 15 miles per hour.

As to her observance of defendant's truck immediately before and at the time of the collision, plaintiff testified on direct examination as follows:

"Q. Now as you entered Front street, what did you do?

"A. I looked both ways to see if there was any other cars coming.

"Q. And what did you see?

"A. I saw a truck on my right.

"Q. Now tell the jury about how far the truck was when you first saw it * * * just tell them what you saw.

"A. Well, the truck was about a half a block from the intersection when I entered the intersection.

"Q. And it was coming, I assume in a northerly direction toward the intersection?

"A. Yes, sir.

"Q. And what did you then do?

"A. I figured I had plenty of time to cross the intersection so I proceeded east.

"Q. Then what occurred?

"A. And before I could get across, when I was about two-thirds across the intersection I noticed this truck plowing right down on me.

"Q. What did you then do?

"A. I tried to miss him, I tried to dodge him.

"Q. And what did you do in an attempt to avoid him?

"A. I stepped on my gas and turned to my left.

"Q. And how much time intervened between that attempt to avoid him and the collision?

"A. Hardly any.

"Q. Did he turn to the right or left?

"A. Seemed to me he came straight toward me.

"Q. And did he reduce his speed?

"A. Not that I could tell.

"Q. What was his speed as best as you could judge?

"A. Well, I am not a judge of speeds, I couldn't say, but I know that he was coming much faster than I realized because he got there much sooner than I expected him."

On cross-examination, with reference to the same matter, plaintiff testified as follows:

"Q. And you didn't see it (referring to defendant's auto truck) until you entered the intersection?

"A. No, sir.

* * * * * "Q. Did you see it as soon as you did enter the intersection?

"A. Yes, sir.

"Q. At that time it was coming at this fast rate of speed that you have spoken of?

"A. I didn't know how fast it was coming until it reached me.

"Q. I think you said it came at the same rate of speed all the time, it came right on through, it didn't slow down?

"A. Yes, I didn't realize how fast it was coming until it got on me.

"Q. You say it didn't slow down until it struck you?

"A. No, sir.

* * * * * "Q. And now did you continue to watch the truck from the time you first saw it until the time of the collision or not?

"A. I don't remember.

"Q. You don't remember?

"A. I think I kept my eye on it.

"Q. You think you kept your eye on it?

"A. Yes.

"Q. Are you sure you did?

"A. Yes, sir."

Witness Ellis testified in behalf of plaintiff, in part, as follows:

"Q. And as you approached Front street, just tell the jury what you saw.

* * * * * "A. I was coming across the Hawthorne bridge on the inside lane, and as I got over within 20 feet of the curb line I noticed this truck coming down Front street and this Ford coupe coming this way (indicating) and the Ohio hotel sits right there. The Ford coupe was going east and as the Ford coupe was very near past the east boundary line of Front street going east — on the east boundary here (indicating) this truck hit it on the right rear wheel and turned it over and put it up here on these street car tracks right opposite where I was at."

This witness also testified that when the truck struck the coupe, the coupe went up in the air and when it came down, it slid eight or ten feet on the cobblestones. And said witness also testified that as defendant came into the intersection, he was driving at a rate of speed between 30 and 35 miles, and that defendant did not reduce his speed before the collision. This witness also testified that he thought plaintiff was going at the rate of speed of about 20 miles an hour.

On his direct examination, Mr. P.F. Paul, a witness for plaintiff, testified that plaintiff was going probably 15 or 20 miles an hour. The following is an excerpt from his cross-examination:

"Q. Was she (plaintiff) going about the same speed that you were going?

"A. Yes.

"Q. Ahead of you?

"A. Yes.

"Q. About 18 miles an hour?

"A. Yes, I did not look at the speedometer, but that is it approximately.

"Q. You say you were going 18 miles an hour?

"A. From 15 to 18 miles an hour.

"Q. Was it 15 or 18?

"A. I couldn't judge that, it is a hard proposition.

"Q. You say it was above 15 and below 20?

"A. I would say close to 15.

"Q. Closer to 15?

"A. Yes, closer to 15.

"Q. Would you say it was just about 15 or just below 15?

"A. Well, if anything, I would say under 15 as that is a blind street."

The plaintiff, herself, testified that her rate of speed as she went east on Madison street to cross Front street was not more than 15 miles an hour.

At the conclusion of plaintiff's case in chief, defendant interposed a motion for involuntary nonsuit based upon alleged failure of proof of negligence on defendant's part, and upon alleged proof of plaintiff's negligence which was the proximate cause of or contributed to the proximate cause of plaintiff's injuries, and especially for the reason that plaintiff was driving at a greater rate of speed than that allowed by law; that plaintiff failed to yield the right of way to defendant's automobile which she observed approaching at all times from the time she entered the intersection up to the point of collision.

Defendant's motion for involuntary nonsuit was overruled and an exception allowed.

At the conclusion of the testimony, defendant moved for a directed verdict in favor of defendant upon the same grounds as those urged in support of his motion for involuntary nonsuit.

Defendant's motion for a directed verdict was overruled and an exception allowed.

The trial court refused to give defendant's requested instruction, number six, which is as follows:

"You are instructed that the plaintiff's automobile was approaching the intersection from the defendant's left, and that the defendant therefore had the right of way. That the two cars were approaching the intersection simultaneously is demonstrated by the collision. You are therefore instructed that the plaintiff was guilty of negligence in failing to give the right of way."

The court gave plaintiff's requested instruction, number one, as follows:

"Now in the light of this instruction, ladies and gentlemen, I charge that if the plaintiff, the driver of the Ford, when she came to the Front street crossing, looked to her right and the automobile truck driven by the defendant on Front street was not then within such distance of the Madison street intersection as reasonably as to indicate to her danger of a collision, then she was under no obligation to stop or to wait, but she could proceed to enter and pass the intersection as a matter of right, and under those circumstances it wouldn't be negligence for the plaintiff to have proceeded — to proceed across the intersection."

The trial court also gave the following instruction:

"I instruct you that the plaintiff in approaching and crossing the intersection at Front and Madison streets, had a right to assume, unless the contrary appeared to her, that the defendant's truck was being operated at a moderate and lawful rate of speed, and that the defendant would observe the laws of this state governing automobile traffic."

Exceptions were duly saved to the refusal of the court to give defendant's requested instruction number six, to the giving by the court of plaintiff's requested instruction number one, and to the giving of the instruction last hereinbefore set out.

A verdict was returned in favor of plaintiff in the sum of three thousand seven hundred and eighty-four and 74/100 dollars.

From the judgment based thereupon defendant appeals. The action of the trial court in overruling defendant's motion for nonsuit and directed verdict, the refusal of the trial court to give defendant's requested instruction number six, and the giving of the instructions set out, as having been given, comprise the five alleged errors assigned in defendant's brief as the basis of this appeal.

In support of defendant's claim that the trial court erred in the respects above indicated, defendant urges that plaintiff herself admitted that she saw the defendant's truck approaching, and observed the speed at which it approached and the proximity of defendant's truck to the intersection; and that the testimony in behalf of plaintiff discloses that plaintiff was operating her automobile at a speed in excess of 15 miles an hour.

While as outlined in the foregoing statement of facts, there is testimony tending to establish both the alleged admission and the alleged excessive speed on plaintiff's part, in the light of other portions of the record, this testimony is not conclusive upon plaintiff.

The principle here announced has been recognized in the following cases: Mathis v. Tutweiler, 295 Fed. 661; Wiley v.Rutland R. Co., 86 Vt. 504 (86 A. 808); Culberson v. TheChicago, M. St. P. Ry. Co., 50 Mo. App. 556; Ephland v. TheMissouri Pac. Ry. Co., 57 Mo. App. 147, 162; Rowe v. UnitedRys. Co., 211 Mo. App. 526 (247 S.W. 443); Houston v. Chicago,etc., R. Co., 118 Mo. App. 464 (94 S.W. 560); Meyers v.Chicago, B. Q. Ry. Co., 171 Mo. App. 283 (157 S.W. 362);Thorpe v. The Missouri Pacific Railway Co., 89 Mo. 650 (2 S.W. 3, 58 Am. Rep. 120); Sheperd v. St. Louis Transit Co.,189 Mo. 362 (87 S.W. 1007).

In the case of Mathis v. Tutweiler, supra, one of the questions was whether the plaintiff stepped forward from a place of safety into danger when it was too late for defendant to avoid hitting her. The plaintiff testified that to get out of the way of the automobile she stepped forward just before she was struck. Judge Denison, speaking for the United States Circuit Court of Appeals for the Sixth District, says:

"It was the theory of the defendant, approved by the trial court, that there was no evidence of negligence on the part of the motorman, because Mrs. Mathis was standing in a safe place and only stepped forward into danger when it was too late for him to avoid hitting her. If the above-stated testimony of Mrs. Mathis were all that appeared, this result would seem inevitable; but it is not all. A party plaintiff in such a case is not necessarily absolutely bound by a statement in the nature of an admission, made on cross-examination, which is inconsistent with the direct testimony, or with other facts and circumstances."

The case of Wiley v. Rutland R. Co., supra, was one wherein the plaintiff instituted an action for damages on account of personal injury sustained by being hit by defendant's freight train while plaintiff was crossing the railroad tracks of defendant. In this case, the Supreme Court of Vermont, speaking through Mr. Justice Watson, say:

"It is said that the plaintiff, as a witness, testified that the only time she looked up the track and saw the freight train was when she was some distance easterly of the point opposite the stone steps — within a few steps of the platform — and consequently notwithstanding other evidence introduced by her tended to show her looking at that train when she was almost opposite the stone steps, her own testimony in this respect, being as to a matter within her own knowledge, was in the nature of a judicial admission and therefore, as against her in this case, of conclusive effect. But this is overlooking the distinctive characteristics of judicial admissions made by a party, or his attorney, in court, on the trial of a cause. Such admissions are formal acts done for the purpose of dispensing with the production of evidence by the opposing party of some fact claimed by the latter to be true, and are of conclusive effect, unless relieved against in the discretion of the court. [Citing authorities.] The statement here claimed by the defendant to be conclusive against the plaintiff, constituted a part of her testimony as a witness on the trial of the cause. Considered as a statement against her interest, it was not an admission, distinct and formal in character, nor was it made for the purpose of dispensing with the formal proof of any fact at the trial. It was not therefore in the nature of a judicial admission, having conclusive effect in law. It has been held by this Court that admissions made by a party in giving testimony as a witness on the trial of a cause, are not controlling against him, as a matter of law, when shown by the opposing party on a subsequent trial of the same cause. LaFlam v. Missisquoi Pulp Co., 74 Vt. 125,52 A. 526. Neither are they, being informal, conclusive in law on the trial at which the party gives the testimony. Matthews v. Story, 54 Ind. 417;Shepard v. St. Louis Transit Co., 189 Mo. 362, 87 S.W. 1007;Zander v. Transit Co., 206 Mo. 445, 103 S.W. 1006; Wigmore on Ev., § 2594; Chamberlayne on Ev., §§ 1263, 1264."

Defendant cites the case of McNab v. O'Flynn, 127 Or. 490 (272 P. 670), in support of his requested instruction number six. In that case the driver of defendant's car testified unequivocally both on direct examination and upon cross-examination that she was operating defendant's car at a speed of 30 miles an hour. Nowhere in the record was this testimony controverted. It was corroborated by the testimony of other witnesses. The court could not do otherwise than treat the fact as established.

The question of the propriety or impropriety of substituting an instruction similar to defendant's requested instruction number six herein for the instruction which was actually given was not before this court in the McNab-O'Flynn case. In that case, as in the case at bar, the trial court instructed the jury to the effect that the provision of the Motor Vehicle Act concerning the right of precedence at a crossing has no proper application except where the travelers or vehicles on the intersecting highways approach the crossing so nearly at the same time, and at such rates of speed that if both proceed each without regard to the other, a collision or interference between them is to be reasonably apprehended. In such a case, it is the right of the one having the precedence to continue his course and it is the duty of the other to yield him the right of way; but if a traveler, not having such right of way, comes to the crossing and finds no one approaching it upon the other highway within such distance as to reasonably indicate danger of interference or collision, he is under no obligation to stop or to wait, but may proceed to use such crossing as a matter of right.

There are but three sentences in defendant's requested instruction number six. The first states the fact that plaintiff's automobile was approaching the intersection from defendant's left, and as a matter of law seeks to make conclusive the inference therefrom that defendant had the right of way. The second consists of a repetition of a statement made by this court in the McNab-O'Flynn case to the effect that the fact that the two cars were approaching the intersection simultaneously is demonstrated by the collision. The third sentence states that plaintiff was guilty of negligence in failing to give the right of way. The vice of the first sentence lies in the omission therefrom of the element of reasonable apprehension of the collision on plaintiff's part. If the appearance of the traffic is such as to indicate to the driver of an automobile that no one is approaching from the right upon the other highway within such distance as reasonably to indicate danger of collision, no matter what the actual situation thereafter may prove to have been, the one approaching from the right does not have the right of way. It occurs to the writer that the accuracy of the statement set forth in the second sentence of this instruction can not be questioned. It is one utterance of this court upon which even doctors ought not to disagree. It is, however, only a statement of an inference. As a rule of law the third sentence of the requested instruction, however, is fallacious for the reason indicated in discussing the first sentence.

For these reasons, no error was committed by refusing to give said instruction.

Defendant also cites the case of Bakkum v. Holder, 135 Or. 387 (295 P. 1115). In that case, the facts showing that plaintiff was contributorily negligent were unequivocally and irrefutably established. The only testimony regarding speed was that defendant was going about 10 miles an hour. These matters clearly distinguish that case from the case at bar.

The objections urged by defendant to the giving by the trial court of the instructions set forth in the foregoing statement of the case are based upon the same grounds as his motions for nonsuit and directed verdict; and, for the reasons stated, we hold them to be untenable.

Plaintiff's requested instruction number one may be subject to the criticism that it does not expressly enjoin upon plaintiff the duty of acting as a reasonably prudent person in determining whether another car was approaching within such distance as to indicate danger of collision; and, therefore, it is not approved as a model instruction. This objection was not urged by defendant, and the requested instruction is not prejudicial when it is considered in the light of the one immediately preceding it, which is stated in our discussion of the McNab-O'Flynn case; and the further instruction expressly given to the jury that plaintiff was required to look alertly to her right in an endeavor to apprise herself of the presence of all vehicles approaching the intersection in that direction, their distance from the point of passage and their rates of speed; and that plaintiff was required to exercise the judgment of a reasonably prudent driver in determining whether or not she would collide with any car to her right if she continued her approach.

The judgment of the circuit court is affirmed.

BEAN, C.J., RAND and ROSSMAN, JJ., concur.