Opinion
Argued March 7, 1928
Affirmed March 13, 1928
From Multnomah: JAMES U. CAMPBELL, Judge.
This is an action to recover damages for alleged personal injuries sustained by plaintiff on August 27, 1925, when he was struck by a taxicab operated by defendant corporation while crossing the street at Sixth and Jefferson Streets, Portland, Oregon. The plaintiff averred:
"That by reason of the carelessness and negligence of the defendants * * as hereinbefore mentioned (in the operation of the taxicab), plaintiff was knocked to the pavement; that the left knee-joint of plaintiff was injured and the lower end of the left femur was fractured; that said injuries caused the knee joint to be opened on the inner side, causing extensive lacerations of the ligaments in and about the left knee, causing portions of the bone to be jerked off of the head of the tibia; that plaintiff's leg was also cut, bruised, sprained and wrenched, and plaintiff suffered bruises and cuts in and about his entire body."
Plaintiff prayed for general damages in the amount of $15,000, and special damages in the amount of $250 for doctor bills, $256 for hospital bills and $150 to cover expenses of nursing and medicine.
The trial resulted in a verdict for plaintiff in the amount of $4,000, including doctor and hospital bills. From the judgment based upon that verdict, the defendant corporation appeals.
AFFIRMED.
For appellant there was a brief over the names of Mr. Barnett H. Goldstein and Mr. Thomas Mannix, with an oral argument by Mr. Goldstein.
For respondent there was a brief over the names of Mr. A.C. Shaw and Messrs. Senn Recken, with oral arguments by Mr. Shaw and Mr. F.S. Senn.
The plaintiff says that the driver of the taxicab was negligent in failing to have his taxicab under proper control when reaching the intersection of Sixth and Jefferson Streets; in failing to keep a lookout for pedestrians; in driving at a careless and reckless rate of speed, in excess of twenty miles an hour, over and across the intersection; and in operating the taxicab on the left-hand side of the street.
The testimony of R.A. Stinson, who was driving the taxicab at the time of the accident, clearly shows that he did not keep a proper lookout for pedestrians or he would have seen the plaintiff prior to the time he says he first saw him.
N.W. Hogue, operator of a street-car in the vicinity of the accident, testified that he saw the taxicab strike the plaintiff; that at that time it was moving from twenty-four to twenty-six miles an hour, and was being driven on the wrong side of the street while the driver was attempting to pass a street-car.
The defendant asserts that the verdict returned by the jury is illegal for the reason that it is a quotient verdict, and, to establish its contention, filed an affidavit of Max F. Hoppe, one of the jurors, who said:
"I also depose and say that the verdict arrived at by the jury was a quotient one, that is to say, the verdict was the result of adding the amounts urged by the various jurors and then dividing the total by twelve."
It is unnecessary to cite authorities in support of the proposition that the affidavits of jurors are not competent, and will not be received, to impeach their quotient verdict: Spain v. Oregon-Washington R. Nav. Co., 78 Or. 355 ( 153 P. 470, Ann. Cas. 1917E, 1104); 2 Thompson on Trials (2 ed.), § 2603.
The defendant contends that the court erred in instructing the jury on the question of special damages. There was some evidence of special damages, all of which came into the record without objection on the part of the defendant. Dr. Ong, the attending physician, testified that his charges in an injury of the character of this plaintiff's injuries would be from $150 to $250, and that such charge would be reasonable. The court instructed the jury, however, that under the testimony the doctor bill would be limited to $150. The next item is that of $256, the amount incurred for hospital bills. The record shows that the plaintiff was at Good Samaritan Hospital for more than two months, and that the amount due the hospital for his care while a patient there was $256, all of which he had paid except $50.75. It will be observed that the verdict did not include the bill for nursing and medicine. However, there was some competent evidence adduced in support of each of the items constituting special damages. We believe that the showing made by the plaintiff complies with the rule as to proof of special damages laid down in the case of Coblentz v. Jaloff, 115 Or. 656 ( 239 P. 825).
Did the court err in instructing the jury relative to the permanency of plaintiff's injury? One of the contested questions was as to whether or not the plaintiff sustained a permanent injury. A careful reading of the instructions as a whole, however, shows that the court did not undertake to pass upon that question, but left it for the jury to determine.
The chief objection urged for the reversal of this cause relates to instructions given by the court which the defendant asserts are abstract and purely academic.
Section 1, Chapter 165, General Laws of Oregon, 1925, provides:
"Every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent manner, not to exceed 30 miles per hour, and within the limits of incorporated cities and towns and at intersections not to exceed 20 miles per hour * *, and in no case at a rate of speed that will endanger the property of another, or the life and limb of any person."
The court expounded to the jury the provision just quoted. But it is asserted that there was no act of negligence alleged by plaintiff that would warrant the instructions relating to negligence by a person who was traveling at a speed of less than twenty miles an hour. Paragraph 4 of the complaint alleges particularly the acts of negligence relied upon. Paragraph 3 avers that the owners of the taxicab "operated their taxicab carelessly and negligently on said Sixth Street." But we assume in our discussion that the plaintiff is held to his particular allegations set out above, wherein he attempts to specify in what respect the defendant corporation had been negligent. That the statement of the law made by the court is clearly within the statute cannot be questioned; but, in so far as its application to this pleading is concerned, that statement appears to the writer to be partly academic. Such instructions should not be given, for the reason that the minds of the jurors might thereby be withdrawn from the true issues in the cause. In general, whether or not the giving of an abstract instruction is ground for reversal depends upon the circumstances of each particular case. The court told the jury that, under the language of the statute hereinabove set out, automobiles or taxicabs cannot at all times be driven at the rate of twenty miles an hour, but that they must be driven "with due respect to the life, the limb and the property of others." If, in giving the instructions complained of, the court had assumed facts that were adverse and injurious to the defendant corporation, this case would be reversed without hesitation. But not an issue was misstated by the court, nor was a fact assumed that was injurious to this defendant.
Following a careful reading of all the evidence, we are satisfied that the verdict of the jury was given in accordance with the preponderance of the evidence, and that the triers of fact were guided by lawful instructions.
This case is affirmed. AFFIRMED.
RAND, C.J., and BEAN and BELT, JJ., concur.