214 P. 375 | Or. | 1923
The substance of the complaint in this action is that while the plaintiff was crossing the intersection of West Park and Oak Streets in the City of Portland, the defendant, without any warning, drove his automobile against the plaintiff, throwing him down upon the pavement and inflicting severe personal injuries upon him to his damage, in an amount stated. After denying the infliction of the injuries and the negligence attributed to him, the defendant avers in substance that he was lawfully driving westward on Oak Street when he suddenly discovered the plaintiff crossing the street diagonally toward the southeast at a point about the middle thereof and that, as the defendant turned to pass to the right of the plaintiff, between him and the curb, the latter unexpectedly retraced his steps and ran directly in front of the ear so quickly that the defendant was unable to stop. He further avers that the resulting collision was therefore unavoidable on the part of the defendant and was due to the plaintiff’s own negligence. The new matter in the answer was traversed by the reply, A jury trial resulted in a judgment for the plaintiff and the defendant appeals.
“Q. Suppose a person was injured and did not have the money to pay for it, wouldn’t Dr. Ziegler set the bones ?
“A. I might qualify that and simply say this: That Mr. Sinsheimer was there. I says, ‘Sinehy’ — I have known Mr. Sinsheimer a long time — ‘Have you got any insurance on this proposition?’ He says, ‘Sure.’ ”
The other witness was being interrogated about who was present at the hospital at a certain time while the plaintiff was there as a patient and the question propounded to the witness and his answer are as follows:
“Q. Was anyone else there at the time?
“A. Internes, I believe; only, Marcellus came up afterward, I think he is the Insurance Company’s Doctor sent up by you.”
In both instances, the counsel for the defendant immediately moved the court to withdraw the answer from the jury and to instruct the jurors not to regard same. This motion was not resisted by the plaintiff, and the court allowed it, giving the desired instruction to the jury. Thereupon, at the time in each instance, in addition to the motion already mentioned, the defendant by his counsel moved the court to discharge the jury and award a new trial. This motion was denied.
“Where such questions are improperly asked, with the intent to get before the jury a fact not material to the case, the court should penalize the party guilty of such misconduct by discharging the jury.”
So here, applying that rule, if the plaintiff had attempted to get before the jury the fact that the defendant was insured, either by offering testimony to that effect or by his questions of the jurors on the voir dire or the like, the court would have been justified in punishing him by discharging the jury. In the main, the decisions cited by the defendant in the instant case are of this sort. For instance, in
“The question put by the court called out the discussion of the insurance. The fact remains that over the defendant’s objection the matter of insurance was discussed, and the court left standing in the record the fact that the defendant was insured and the plaintiff was not insured.”
The result was a reversal of the appeal. The precedent is not controlling here, for, while there the testimony was left in the record, in the instant case, it was stricken out without opposition. In Tincknell v. Ketchman, 78 Misc. Rep. 419 (139 N. Y. Supp. 620), the objectionable testimony was brought out by the leading question of the plaintiff’s counsel. Substantially the same is true in Scranton Gas and Water Co. v. Weston, 63 Pa. Super. Ct. 570; Hollis v. United States Glass Co., 220 Pa. 49 (69 Atl. 55); Carter v. Walker (Tex. Civ. App.), 165 S. W. 483. Schmidt v. Schalm, 2 Ohio App. 268, was an instance where the plaintiff’s counsel intimated insurance in his examination of jurors.
In the present juncture, there is a total absence of any indication that the plaintiff sought to inject the objectionable matter into the case. It was during cross-examination of the plaintiff’s witnesses that it was disclosed. True enough, the answers were not responsive to the question asked; and the witnesses volunteered the information. Of course, if it could be shown by the record that the plaintiff had connived and confederated with the witnesses to volunteer such a statement, he ought to be penalized according to the precept laid down in Tuohy v.
Unlooked-for disclosures are often made by witnesses and in the absence of some peculiar countervailing circumstance, the action of the court, detailed in this instance, ought to be a sufficient remedy for the evil complained of. It would be intolerable for a party who is without blame in the matter to suffer by the blunder of opposing counsel or the overzealous utterances of a witness. The statements of the witnesses on this point were clearly irrelevant and immaterial to the issue joined; but the remedy applied by the court in directing the jury to disregard it and withdrawing it from the case, was apropos and served all just purposes.
There are many instances where a fact of that kind might legitimately be developed in cross-examination. For instance, in Lenahan v. Pittston Coal Mining Co., 221 Pa. St. 626 (70 Atl. 884), was a case where one of the defendant’s attorneys offered himself as a witness to impeach one of the plaintiff’s witnesses. On cross-examination, in order to affect his credibility by showing his interest in the result of the trial, he was compelled to admit that at the time he was an attorney for an insurance company that had insured the defendant against the accident involved in the case on trial. In that instance, the court strongly condemned the practice of bringing such a fact into the case but qualified the precept
It is also urged that the court should have granted a nonsuit on motion of the defendant at the close of the plaintiff’s case and likewise have sustained the defendant’s motion for a directed verdict in his favor. The defendant argues that there was no evidence that he was negligent in the operation of his car. Negligence is ordinarily a question of fact for the jury: Palmer v. Portland Ry. L. & P. Co., 56 Or. 262 (108 Pac. 211). This accident happened upon a public street in the City of Portland. Each party had a right to use that street as a passageway. Their rights are reciprocal. The normal exercise of those rights would result in no injury to either party. The injury is thoroughly established and it is admitted that the defendant’s automobile was a factor in the affair. This is an occurrence contrary to the usual normal traffic on the streets where both footmen and vehicles are entitled to travel, and involves a fault of some kind in some person participating in the occurrence. There was testimony to the effect that there was. an unobstructed view of the street in front of the defendant’s automobile, that he had lights on the front of the car and that he did not see the plaintiff until he was about four feet from him. The jury was authorized to believe that in the exercise of ordinary care he could have seen him sooner and so have avoided the collision. Although much of this testimony came from the defendant, it was
It is urged likewise, that the court erred in admitting some skiagraphs of the plaintiff’s broken bones on the ground that they were not properly identified. The physician under examination at the time they were introduced declared that they were pictures of the injured anatomy of the plaintiff. This was sufficient to overrule the objection which, indeed, goes only to the weight of the testimony. The conclusion is that the judgment must be affirmed.
Affirmed. Rehearing Denied.