Lane v. Portland Ry., Light & Power Co.

Mr. Justice Bean delivered the opinion of the court. 1. The statute of this State, Section 132, L. O. L., provides that when the jury has been impaneled and sworn “the plaintiff shall state briefly his cause of action, and the issue to be tried ;the defendant shall then in like manner state his defense.” This statement is the privilege of'the attorney for each party, if he sees fit to exercise it. 2. The opening statement is obviously intended to advise the jury concerning the questions of fact involved, in order to prepare their minds for the evidence to be heard, but is not intended to take the place of a complaint or other pleading, and how full it shall be, within reasonable bounds, is left to the attorney’s discretion. To relate the testimony at length will not be tolerated. 1 Thompson, Trials, § 267. As we understand the record in this case, counsel for plaintiff read the complaint, and in effect stated that he expected the evidence to prove the facts therein alleged; therefore the only question to be determined by the court is whether or not the complaint states th'e cause of action. ■ This was practically conceded by the defendant when it filed its answer; moreover, if defendant had the right, and desired to take advantage of counsel’s statement for plaintiff, the better time would [369] have been at the close of such statement, before plaintiff was called to the witness stand, and before defendant’s counsel made his opening remarks to the jury. 3. Assuming the statement of plaintiff’s counsel to be fatally defective, we seriously question if the right to rely on such defect was not waived by defendant’s failure to make a timely motion. We do not consider it a safe practice to decide a case upon the opening statement of counsel to the jury, that such a procedure is conducive to the rights of litigants, or that there is great necessity for exercising this power, except in cases where it unmistakably appears that the action is based upon a contract prohibited by morality or public policy. In Oscanyan v. Winchester Arms Co., 103 U. S. 261 (26 L. Ed. 539), the statement disclosed that action was brought upon a contract for commissions on a sale of arms to Turkey, of which government plaintiff was then consul general at the port of New York, and the contract was void, being corrupt and prohibited by morality and public policy. Mr. Justice Field, in his opinion in this case, at page 264 of 103 U. S. (26 L. Ed. 539), says, in substance, that if it should appear from the opening statement that the action is brought to obtain remuneration for acts which the law declares to be corrupt, immoral, or criminal, after full consideration and ample opportunity for the party making the statement to explain and qualify it, if then, it clearly appears that there can be no recovery, the court should not hesitate to so declare. In Pietsch v. Pietsch, Cent. Law J. of August 5, 1910, vol. 71, p. 81, a suit in forcible detainer for the possession of a lot in Chicago, begun in the municipal court of that city, based upon the statement of counsel for defendant, admitting the legal title of the lot to be in plaintiff, the court instructed the jury to render a verdict in favor of the plaintiff. The appellate court for the first district [370] affirmed the judgment, and the Supreme Court of Illinois, in reversing the case, on this point, said: “A party is entitled to introduce evidence and prove a cause of action or to defend against evidence tending to sustain a cause of action if no statement at all is made, and is not confined in the introduction of evidence to the statement made in the opening, if one is made. The opening statement may be wrong as to some facts, and there is no requirement that it shall give all the facts of the case, which may turn out to be different from the statement.” Also in Fletcher v. London & Northwestern Ry. Co., 65 L. T. R. 605, an English case for personal injuries, where the trial judge nonsuited the plaintiff, for the reason that the opening statement of his counsel did not show a cause of action, it was held that the judge had no right to so nonsuit plaintiff, except by the consent of his counsel. The practice of granting a nonsuit, much less the dismissing of the complaint on the opening statement, has never prevailed in Wisconsin, and in Haley v. Western Transit Co., 76 Wis. 344 (45 N. W. 16), and cases there cited, was not permitted, even though the counsel consented that such statement should be considered in connection with the complaint and treated as a part thereof; but in Kansas such practice appears to have been sanctioned in Lindley v. A. T. & S. F. Ry. Co., 47 Kan. 432 (28 Pac. 201). 4. As we understand the record in this case and the claim of counsel for defendant, the ruling was based principally upon the statement of plaintiff’s counsel that plaintiff was “not able to see the car, nor able to hear it.” Very naturally counsel for defendant applies this statement as referring to the time before plaintiff crossed the tracks. By reference to the direct allegation in the complaint, that it was “while plaintiff was in the act of making such crossing with his team and light wagon before [371] mentioned, his view was necessarily obstructed by defendant’s aforesaid standing car, so as to prevent his observation of another of defendant’s cars,” and the statement of plaintiff’s counsel, to the effect that plaintiff was unable to see through this obstruction, it would seem that counsel for plaintiff had in mind the time when plaintiff was crossing the east track behind the standing car. We do not understand that either the complaint or the statement of plaintiff’s attorney indicates how far, or what plaintiff could or could not, see or hear before the time of crossing the tracks. This case illustrates the danger of deciding an issue upon so meagre a showing of the facts. 5. The case of Donohoe v. Portland Ry., L. & P. Co., 56 Or. 58 (107 Pac. 964), disposes of the point in regard to looking and listening adversely to defendant, where, in the language used by Mr. Justice Slater, “it has also been held by this court that, although it is negligence for the traveler not to look or listen for approaching trains before attempting to cross a railway track, the law does not undertake to determine whether he shall do so at any particular place or given distance from the crossing.” 6. “It is only required that he shall look and listen at the time and place necessary in the exercise of ordinary care, and this is generally a question for the jury under all the circumstances of the particular case.” We do not deem it opportune to discuss this case at length, although several questions that may possibly arise are ably presented by the briefs of the respective counsel. In our opinion the case should be tried. The judgment of the lower court is accordingly reversed, and the cause remanded for trial. Mr. Justice Burnett concurs in the result. Reversed.