263 P. 881 | Or. | 1928
AFFIRMED. Plaintiff had a verdict in an action to recover damages for personal injuries sustained while employed as a "choker setter" in carrying on certain logging operations of the defendant company. Defendant appeals.
Error is assigned on the denial of defendant's motion for judgment notwithstanding the verdict. It is not contended that the allegations of the complaint are insufficient to state a cause of action. There was no motion for nonsuit or directed verdict. We have several times stated the motion made is directed to the state of the pleadings: Section 202, Or. L.; Bernstein
v. Berg,
Defendant contends there was no allegation of special damages and it was, therefore, error to admit testimony relative to loss of wages. It is alleged in the complaint that plaintiff sustained a "loss of time from his work and labor." While there are authorities which hold similar allegations insufficient upon which to predicate a claim for special damages, we believe the better reasoned cases sustain the pleading: Hitchings v. Cityof Maryville,
Defendant complains because the plaintiff, on direct examination, was permitted to testify that he had been injured before the happening of the accident in question. An examination of the record discloses that there was no attempt on the part of the plaintiff to recover damages for aggravation of a prior injury. He stated that he had fully recovered from the first injury. We are at a loss to understand in what way this testimony could have been prejudicial to defendant. There is no merit in this assignment.
Much space in the briefs is devoted to the alleged misconduct of counsel for plaintiff in his argument to the jury. However, no ruling was requested nor was any made relative to the question now sought to be reviewed. As stated in Watts v.Spokane, P. S. Ry. Co.,
"The language and conduct of counsel will justify a reversal only when connected with some judicial error on the part of the trial judge."
Objection is made to the following instruction of the court, defining proximate cause:
"Proximate cause might be defined generally as the means which lead to or might naturally be expected *651 to produce the result. That is to say, it is any act or omission which might produce or fail to prevent the injury, or which directly puts in operation another agency whereby injury is inflicted and which would not have happened but for the original negligent act or omission."
The first part of this instruction is approved in Elliff v.Oregon R. N. Co.,
The other two assignments are entirely without merit.
Finding no error in the record, the judgment is affirmed.
AFFIRMED.
RAND, C.J., and BEAN and BROWN, JJ., concur.