261 P. 71 | Or. | 1927
In Banc.
AFFIRMED. Plaintiff, the mother of five minor children, made application to the State Industrial Accident Commission for compensation on account of the death of her husband, alleged to have been caused by an accident arising out of and in the course of his employment. The Commission rejected the claim on the theory that the death of plaintiff's husband was not the result of an accident but that it was caused by pneumonia. From an order rejecting the claim, plaintiff appealed to the Circuit Court. The cause was submitted to a jury and a verdict returned in favor of the plaintiff. Hence this appeal.
Under the stipulation of facts the only issue before the trial court was: What was the proximate cause of the death of Hartley? There is much evidence supporting the contention of the Accident Commission, *312 but it is conceded that there is also evidence tending to show that the death might reasonably have occurred as a proximate result of the accident. Under the Constitution of this state we are not permitted to review this question of fact.
Defendant asks that the judgment of the lower court be reversed because it permitted Willis Lane, a lay witness who had visited Hartley while in the hospital, in response to the question, "Did Hartley get worse or better after said injury?" to answer, "He got worse." Lane was well acquainted with Hartley and was working with him at the time of the alleged accident. We think this evidence is within the exception to the general rule that lay witnesses are not permitted to express conclusions, but must state facts. It is well settled that a nonexpert witness should be permitted to testify as to the apparent health and physical condition of a person and as to whether there had been any change in that respect since the happening of an accident:Crosby v. Portland Ry. Co.,
About 7 o'clock in the evening, after Hartley's alleged injury, he returned to his hotel which was about 3 1/2 miles from the place of the accident. Mrs. Mayer, who operated the hotel, was asked:
"You may state what you heard and saw when the reported injury took place."
and was permitted to answer, over objection:
"Well that evening that he was injured and came in late and I, myself, and several others were in the office at the time. `Well,' we says, `Hartley, what is the trouble? You are late. What was the cause?' * * and he says, `Well, it is a wonder I wasn't killed,' and went on to state he was knocked off the truck."
It was error to admit this testimony. It was not a part of the res gestae: Fredenthal v. Brown,