Summary
The Oregon Supreme Court affirmed a judgment for a pedestrian injured when struck by the defendant’s automobile on a wet, curved roadway in North Bend. The court held that the evidence supported submission of negligence and speed issues to the jury, and that evidence concerning promised wage increases, vehicle speed, the plaintiff’s complaints of pain, and contributory negligence instructions was properly admitted or given. The court found no prejudicial error and denied rehearing.
Topics
Practice areas
Questions Presented
- Whether the trial court properly denied Bartle's motion for nonsuit.
- Whether the evidence supported a jury finding that Bartle negligently operated the automobile under the circumstances.
- Whether evidence of Weygandt's promised wage increase and resulting inability to perform the work was admissible and whether the damages verdict was excessive.
- Whether North Bend had authority under its legislative charter to enact and enforce the ordinance regulating automobile speed.
- Whether a nonexpert passenger was competent to estimate the automobile's speed.
- Whether questioning a party's own witness about a prior speed estimate was permissible to refresh memory rather than improper impeachment.
- Whether Weygandt's statements concerning pain and symptoms were admissible to show his physical condition.
- Whether the jury could be instructed on contributory negligence when that defense was not pleaded, where defendant requested an instruction of the same purport.
Holdings
- In reviewing a motion for nonsuit, the court may consider the entire testimony, including evidence introduced by the defendant; if the defendant's evidence supplies an omission in the plaintiff's proof, denial of nonsuit will not be disturbed.
- Evidence that a driver operated an automobile at a speed greater than reasonable and proper under the circumstances and failed to maintain sufficient control to avoid striking a pedestrian presents a question for the jury.
- Evidence that, under an employment arrangement, the plaintiff was promised promotion or an increase in wages within a stipulated or reasonable time is admissible on the question of damages when the injury prevented him from performing the promoted work. The $750 verdict was not excessive.
- North Bend's 1903 legislative charter authorized the city council to regulate streets, traffic, and the speed of vehicles, so the charter need not be pleaded in the action and the ordinance could properly be submitted to the jury.
- A passenger who had ridden in automobiles and observed speedometers was competent to estimate the speed of the automobile involved in the accident; any objection went to the weight rather than the admissibility of the testimony.
- The trial court has discretion to permit counsel to question a disappointed witness about prior statements when the questioning is intended to refresh the witness's memory rather than impeach the witness.
- A plaintiff's statements about present pain and physical condition may be admitted to show health, and a physician or attendant may testify to statements about symptoms, ills, and the location and character of pain when made for medical advice or treatment.
- A defendant cannot complain on appeal about a contributory-negligence instruction when the defendant requested an instruction of the same purport; in addition, an instruction favorable to the defendant is not reversible error.
Key quotations
“The deductions to be drawn from the evidence are for the jury and not for the court.” (316)
“It is well settled that a physician or attendant may testify to the injured party’s statement as to his symptoms, ills, and the locality and character of his pain, when made for the purpose of medical advice and treatment, as such statements are made with a view to being acted upon in a matter of grave personal concern, in relation to which the injured party has a strong and direct interest to adhere to the truth” (319)
Factual background
On a dark, wet and misty night, Weygandt was walking along Railroad Avenue, a frequently used planked highway within North Bend, on his way to work. Bartle drove an automobile around a sharp curve at an estimated fifteen to twenty-five miles per hour while carrying six people, and the car struck Weygandt as he attempted to avoid it. Weygandt testified that he received no warning, and the evidence supported findings that Bartle was driving faster than was reasonable under the conditions and lacked sufficient control to avoid the collision. Weygandt suffered serious injuries that impaired his ability to perform work for which he had been promised increased wages and later promoted.
Procedural history
The action was tried in the Circuit Court for Coos County before George F. Skipworth, Judge. The jury returned a verdict for Weygandt and judgment was entered for $750. Bartle appealed, assigning error concerning denial of nonsuit, damages evidence, municipal authority and ordinance evidence, witness testimony, admission of injury declarations, and jury instructions. The Oregon Supreme Court affirmed and denied rehearing.