331 P.2d 879 | Or. | 1958
This is an action by plaintiff for personal injury sustained in an automobile accident. The verdict and judgment were for defendants and plaintiff appeals. The accident in question occurred at about 8:30 p. m. on March 18, 1953, on U. S. Highway 97, approximately two and one-half miles south of Crescent, Oregon. At the time plaintiff was a passenger in a pickup truck proceeding in a northerly direction on the highway. The defendant Johnson was, on this occasion, operating a large lumber truck, also in a northerly direction. The truck was owned by the defendant Taylor. Defendant Schlegel was operating a Chevrolet ear in a southerly direction at the time in question.
She charges both defendants with negligence in stopping their respective vehicles on the paved portion of the highway at a place and time when visibility was limited by reason of the rise or hill in the highway and the falling snow. She also charges each with unlawfully parking on the highway. She charges the defendant Johnson with failing to have adequate warning lights on the rear of the truck, the defendant Schlegel with directing the headlights of his vehicle at more than 42 inches above the ground and more thaii 75 feet in front thereof as required by statute. There were other specifications not necessary to mention.
There are numerous assignments of error but we deem it necessary to consider only one. In instructing the jury on the issue of the defendant Schlegel’s lights, the court gave this instruction:
“I instruct you plaintiff has charged defendant*622 J. I. Schlegel with negligence in that said defendant directed the headlights of his vehicle in excess of 42 inches above the level on which his vehicle stood, and at a distance greater than 75 feet ahead of said vehicle, so arranged that the glaring rays projected into the eyes of oncoming traffic and of the driver of the pickup.
“In this connection, with this specification of negligence, I further instruct you that there is no evidence that the headlights of the defendant Schlegel were so arranged that the glaring rays projected into the. eyes of oncoming traffic and said driver, and before you can find against defendant Schlegel under this charge you must find from a preponderance of the evidence defendant Schlegel was guilty as charged and that such negligence proximately caused the collision and resulting injuries, and that plaintiff was herself free from negligence which proximately caused said collision and resulting injuries.” (Italics ours.)
Timely exception was taken. In fact, court and counsel engaged in brief discussion of the instruction in which the court’s attention was specifically directed to that portion of the instruction informing the jury that there was no evidence to substantiate the allegation.
The vice of the instruction is readily apparent. The statement that there “is no evidence that the headlights of the defendant Schlegel were so arranged that the glaring rays projected into the eyes of oncoming traffic * * *” is not only a comment on the evidence, it withdrew from the jury’s consideration evidence which was important to its consideration of the issues. This, of course,.was improper. Kemp v. Portland Ry., L. & P. Co., 74 Or 258, 145 P 274. We are told that the insertion of the word “no” was by inadvertence. Unfortunately the jury could not know this.
The next portion of the instruction was contradictory to the part just quoted. However, no exception was taken to that fault of the instruction. Exception was taken that the last phrase of the instruction informed the jury that plaintiff was obliged to prove by a preponderance of the evidence that she was free from contributory negligence. Further reference is made to this feature of the instruction later in this opinion.
Defendants Taylor and Johnson argued that if the above-quoted instruction were prejudicially erroneous, it affected only the defendant Schlegel. No reason or authority is presented to sustain this contention other than the bare assertion that it did not affect these defendants. "We must, therefore, determine if the error committed by the instruction was material to any issue presented by defendants Johnson and Taylor. We believe it was.
Each of the answers filed by the defendants alleged in identical language that plaintiff’s host driver, Newell, was guilty of negligence in several particulars, including failure to maintain a proper or any lookout, lack of control; and that he failed to slow down, turn or stop to avoid a collision with the truck. Each answer also alleged such acts were the sole proximate cause of the accident and that plaintiff adopted these acts as her own. There was conflicting evidence as to each of these allegations. On at least four separate occasions in its instructions the court emphasized to the jury the duty of the driver, Newell, and plaintiff
In fact, the actual effect of this withdrawal was to substantially eliminate Schlegel from the case. The
Plaintiff complains of other instructions to which no exception was taken. In view of a new trial we feel impelled to mention that the instructions were repetitious and unduly emphasized the burden upon plaintiff. They were particularly repetitious in regard to the allegations of negligence directed to the host driver, Newell. We have already mentioned the language of the quoted instruction. It lends itself to an inference that plaintiff must prove freedom from contributory negligence. Similar language was repeated in other instructions. This can be corrected upon retrial.
For the reasons assigned we believe justice will best be served by reversing the judgment as to both defendants and remanding the case for new trial. Zemczonek v. McElroy, 264 Ala 258, 86 So2d 824; 5B CJS 411, Appeal and Error § 1919.
Reversed.