Opinion
Argued January 6, 1932
Affirmed January 19, 1932
Appeal from Circuit Court, Multnomah County, JACOB KANZLER, Judge.
Action by Mary MacL. Sylvis against S.L. Hays and another. Judgment for defendants, and plaintiff appeals.
AFFIRMED.
James L. Conley, of Portland (A.G. Fletcher and Calvin N. Souther, both of Portland, on the brief), for appellant.
W.H. Maguire, of Portland (Dey, Hampson Nelson, of Portland, on the brief), for respondents.
This is an action for damages arising out of a certain automobile accident wherein the automobile driven by plaintiff and that owned by defendant S.L. Hays and operated by defendant Lena M. Hays, his wife, collided at the intersection of East Seventh and Weidler streets in the city of Portland on May 16, 1928.
The plaintiff alleges, among other things, the existence of a certain city ordinance, under the terms of which all traffic approaching Weidler street from the north or south was required to stop before entering that street, and to yield the right of way to traffic thereon; that, on the date mentioned, plaintiff was driving her automobile in a westerly direction on the right side of Weidler street at a speed not in excess of twenty miles per hour, and as she approached the intersection of that street with East Seventh street she saw the automobile of defendants approaching from the north on Seventh street; that plaintiff proceeded on into the intersection, driving carefully and at the same rate of speed, and that, after she had reached a point about three-fourths of the distance across the intersection, defendant Lena M. Hays drove the approaching car into the intersection without coming to a stop or changing the speed at which she had been traveling, which was approximately twenty miles per hour, and collided with and struck plaintiff's automobile, damaging it and causing injuries to plaintiff. She alleges that the collision was caused solely by the negligence of defendant Lena M. Hays, in that she failed to yield to plaintiff the right of way and the privilege of first crossing the intersection, and failed to stop before entering the intersection; that she failed to keep a proper lookout for traffic; that, after she saw plaintiff's automobile and that a collision was imminent, she made no attempt whatsoever to avoid the collision, "whereas she could easily have avoided same by the exercise of reasonable care and management of her said automobile after so seeing the danger of said collision." She alleges that, by reason thereof, she has been damaged in the sum of ten thousand dollars, in which sum she demands judgment.
The defendants by their answer deny all negligence upon their part, and, for a further and separate answer and affirmative defense, allege:
"That, on May 16, 1928, at about the hour of 4:30 o'clock p.m., defendants were operating a certain Overland automobile southerly on East Seventh street in the city of Portland, Oregon, near the intersection thereof with Weidler street, which said street intersects East Seventh street at right angles; that, on reaching said intersection and before entering the same, defendants brought said Overland automobile to a stop, and, after doing so, proceeded across said intersection; that, owing to the carelessness and recklessness of the plaintiff as hereinafter more particularly described, a collision then and there took place in said intersection between said Overland automobile and an Essex automobile operated by plaintiff and proceeding westerly along Weidler street at said intersection."
The defendants then aver that the plaintiff was negligent in failing to yield the right of way to defendants' automobile; in failing to have her automobile under proper or any control so as to avoid a collision; in operating her automobile at a careless and reckless rate of speed; and in failing to keep a proper lookout for traffic at the intersection, including the automobile operated by defendants. The answer then avers that, whatever damage the plaintiff sustained was caused by her own negligence, and not by that of the defendants.
The plaintiff, replying, denied generally and specifically each of the allegations contained in defendants' answer.
As a result of the trial, the jury returned a verdict for the defendants and against the plaintiff. From the judgment entered thereon the plaintiff has appealed, assigning error of the court in the following particulars:
In overruling the plaintiff's objection to the following questions put to the plaintiff on cross-examination:
"Q. It is a fact, is it not, Mrs. Sylvis, that when you are at a point fifty feet back and to the east of the east curb line of Seventh street, that you cannot see two hundred feet to your right and north?
* * * * *
"Q. But nevertheless, when you were fifty feet back, in fact, when you were down a distance of thirty feet or twenty feet back, you couldn't from that point see two hundred feet to your right and to the north up East Seventh street, could you?"
In overruling the plaintiff's objection to the following question put to witness Ross B. Hammond on cross-examination:
"Q. I will ask you then, Mr. Hammond, if when you are at a point fifty feet to the east of the east curb line of Seventh street, driving a car, you are able to see two hundred feet to the north along Seventh street? * * * A. I would say that you could not see two hundred feet on Seventh street north."
In giving to the jury the following instruction requested by the defendant:
"You are instructed that the statutes of this state provide that the operator of an automobile shall not operate the same at a rate of speed in excess of fifteen miles per hour through any intersection of highways in the state, if, at any point fifty feet back from the intersection, said operator has not a clear and unobstructed view of the intersecting highway for a distance of at least two hundred feet. Therefore, if you shall find from the evidence in this case that plaintiff, at any time from the time she was at Seventh street or back fifty feet east of the east curb line of Seventh street, did not have a clear and unobstructed view two hundred feet to the north on Seventh street, she was required to slow down her car to a rate of speed not to exceed fifteen miles per hour for that space beginning fifty feet to the east of Seventh street, and through Seventh street."
In refusing to give the following instruction requested by plaintiff:
"You are instructed as a matter of law that the speed permitted at the intersection of East Seventh and Weidler streets at the time of the accident involved herein was twenty miles per hour."
The plaintiff states in her brief that for the reason that "the above listed errors involved practically the same question of law, they are assigned and will be treated together."
In support of her appeal the plaintiff invokes section 9-224, Oregon Code 1930, which provides that the evidence adduced upon the trial of a cause shall be confined to the material allegations of the pleadings, and cites the cases of Woodward v. Oregon Ry. Nav. Co., 18 Or. 289 ( 22 P. 1076), and Martini v. Oregon-Washington R. Nav. Co., 73 Or. 283 ( 144 P. 104). We are in complete accord with the holding in these cases. This question has frequently been passed upon by our court. In Kennedy v. Hawkins, 54 Or. 164 ( 102 P. 733, 25 L.R.A. (N.S.) 606), the rule is stated thus:
"It is always necessary in pleading negligence to allege that some act was negligently done, or that something that ought to have been done was omitted, but it is not necessary to set forth the particular facts that show the act or omission to have been negligent. Cederson v. Oregon Navigation Co., 38 Or. 343 ( 62 P. 637, 63 P. 763). But, when a complaint contains a general averment of negligence, and the defendant joins issue without moving to make the pleading more definite, proof of any negligence within the general scope of the allegation is competent. Jones v. City of Portland, 35 Or. 512 ( 58 P. 657).
See the case of Multnomah County v. Willamette Towing Co., 49 Or. 204, 218 ( 89 P. 389), where Mr. Chief Justice ROBERT S. BEAN, speaking for the court, wrote:
"The averment that the injury to plaintiff's bridge was due to the negligence of defendants was put in issue by the answer, and they were therefore entitled to show affirmatively under their denials that they exercised due care, and that the injury arose from some other cause, such as the act of some person for whom they were not responsible: Hunter v. Grande Ronde Lum. Co., 39 Or. 448 ( 65 P. 598)."
See, also, Stamos v. Portland Electric Power Co., 128 Or. 310 ( 274 P. 915); Pomeroy's Code Remedies (5th Ed.), §§ 546, 547.
In Horn v. Davis, 70 Or. 498 ( 142 P. 544), is an extensive discussion relating to the admissibility of evidence where the allegations of the pleadings are put in issue by a general denial. In that case the court, speaking through Mr. Justice RAMSEY, stated its views in the following language:
"The reply denies generally every allegation of the new matter contained in the answer. This denial puts in issue every material allegation of the answer, and made it necessary for the defendant to prove each of such allegations. Under the issues thus formed, the plaintiff had the right to put in evidence any probative facts tending to disprove the material allegations of the answer."
The opinion then quotes from 31 Cyc., p. 687, in part, as follows:
"The general rule is that, under the general issue or a general denial, any evidence is admissible which contradicts or directly tends to contradict the allegations which the plaintiff must prove in order to sustain his case."
In Peerless Pacific Co. v. Manning, 89 Or. 691 ( 175 P. 429), as to the admissibility of certain evidence under the allegations of the pleadings, it was held:
"Evidence offered by Tamiesie upon the question of who was the contractor tended directly to negative the allegation that Manning was the contractor and tended to establish a circumstance or fact which was inconsistent with the allegations in the complaint. We think the instant case conforms with the rule applied in Horn v. Davis, 70 Or. 498 ( 142 P. 544)."
In the recent case of Fiebiger v. Rambo, 132 Or. 115 ( 284 P. 565), appears a valuable discussion of the question of the admissibility of evidence under the pleadings. In that case the appellant urged that the court erred in giving a certain instruction to which the appellant excepted on the ground that there was no evidence in the case that appellant had failed to hold out his hand. In determining the issue there presented, the court said:
"The complaint contains a general averment of negligence, yet, the defendant having joined issue without moving to make the pleading more definite, proof of any negligence within the general scope of the allegation is competent: Wild v. O.S.L.R. Co., 21 Or. 159, 165 ( 27 P. 954); Jones v. City of Portland, 35 Or. 512, 519 ( 58 P. 657); Kennedy v. Hawkins, 54 Or. 164 ( 102 P. 733, 25 L.R.A. (N.S.), 606)."
Also see 49 C.J., 797, where the editors say:
"It will be observed that as a general rule any evidence is admissible under the general issue which contradicts, or tends directly to contradict, the allegations which the adverse party must establish to sustain his claim, and that under the broader general issues, subject to certain exceptions, evidence of any new matter of defense or avoidance which will defeat the claim asserted is also admissible."
And, in the absence of a motion to make a general allegation of negligence more definite and certain, "any evidence which contradicts, or directly tends to contradict, facts which the adverse party is bound or permitted to establish to sustain his claim or defense is admissible under a general denial." 49 C.J. 799.
The questions involved in this case are procedural in their nature, and all arise out of the reception in evidence of certain matter that was developed in the cross-examination of the plaintiff and one of her witnesses. The plaintiff testified in respect to the position of her car upon the highway at the time she was approaching the intersection where the accident occurred. She swore that she saw the defendant's car nearing the intersection, and testified as to the rate of speed at which the defendants were traveling. Having testified, in effect, as to her view of the intersecting highway, and the movements thereon, she thereby laid the foundation for her cross-examination with reference to her ability to apprehend approaching danger; and if, as appears from the testimony and the exhibits in the case, her view was shut off by obstructions, it was clearly within the right of the cross-examiners to inquire about anything whatsoever which had a bearing upon her competency to delineate the situation surrounding the site of the collision. The questions on cross-examination were proper.
The instructions hereinbefore set out were based upon the established conduct of the plaintiff when approaching the intersection where the accident took place.
Section 1 of chapter 217, General Laws of Oregon, 1927, codified as Oregon Code 1930, § 55-1007, limits the rate of speed of the driver of an automobile to fifteen miles an hour when approaching within fifty feet of and in traversing an intersection of highways, "when at any time during the last fifty feet of his approach to such intersection he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection."
Based upon this statute and the testimony of record, the trial court was authorized to give defendants' requested instruction set out above. See Goff v. Elde, 132 Or. 698 ( 288 P. 212). It was also authorized, and it was its duty, to refuse to instruct the jury as requested by the plaintiff that, as a matter of law, the speed permitted at the intersection of East Seventh and Weidler streets was twenty miles per hour.
By reason of the plaintiff's own negligence, she cannot prevail. We therefore affirm the judgment appealed from.
BEAN, C.J., CAMPBELL and KELLY, JJ., concur.