Everart v. Fischer

Mr. Justice Eakin delivered the opinion of the court. 1. The action should have been brought in the name of the real party in interest, but as no question is raised upon that error we will pass it. Defendants first insist that the court .erred in refusing to instruct the jury to bring in a verdict in favor of defendants; but we find that the evidence was sufficient to require the case to be submitted to the jury on the question of the negligence of defendants. 2. It is assigned as error that tbe court admitted in evidence the order of the Circuit Court appointing plaintiff guardian ad litem for Clifford Everart. That Clifford was a minor, and the appointment of the [319] guardian ad litem are alleged in the complaint, and no special issue is raised thereto. There is a general denial of the allegations of the complaint and no objection thereto was suggested at the trial except as to the introduction of an order appointing the guardian ad litem; the ground of the objection being that the application for the appointment fails to show that the minor was over 14 years of age and nominated the guardian. Probably that is an issue that should be specially raised by a plea in abatement. Woerner on the American Law of Guardianship, page 64, says that in practice it is sufficient if the appointment is recited in the count, and the formality is generally waived. The defendants may take advantage of this defect by demurrer or answer only, and not by motion in arrest of judgment: Jones v. Steele, 36 Mo. 324. 3. Defendants also contend that the court erred in the admission in evidence of ordinance of the City of Portland No. 26,255; the ground of the objection being that the ordinance is superseded by the general statute (Chapter 174, Laws 1911) relating to the manner of operating autos, etc.; but the effect of that statute was held not to supersede a city ordinance in the opinion of this court in the case of Kalich v. Knapp, 73 Or. 558 (145 Pac. 22). 4. Defendants objected to the admission of the testimony of Lottie Hatfield, in which she was permitted to base an estimate of the speed of the auto upon the marks or burns which she claimed were made in the pavement by -the sliding of the wheels when locked. When asked about her knowledge of the speed of an auto, she answered, “Well, I know pretty well about the speed,” and the question was repeated, to which defendants objected on the ground that the defendants’ case ought not to be influenced by testimony so whim [320] sical. The court said, “The jury can judge as to how whimsical it is.” She was then asked if she would be able to approximate the speed of the auto from the tracks it left in stopping. She answered she could, and said, “I should judge from that about 30 miles an hour, by the depth of the burns.” She only gave her judgment based upon facts which she stated to the jury, and we do not deem that defendants’ case was prejudiced thereby. The liability of the defendants would not depend upon the speed of the auto. 5. Exception is also taken to the admission of the evidence of the witness Gould, in which he states that he presented Ralph Citron’s professional card to Mrs. Everart in soliciting a damage case. The evidence did not in any manner have any bearing upon the liability of the defendant, and is not ground for reversal. 6. Defendants also contend that the court erred in instructing the jury as to the provisions of the act of the legislature (Chapter 174, Laws 1911, p. 265) which provides: “Every motor vehicle * * shall, during the period from one hour after sunset to one hour before sunrise, display at least two white lights, ’ ’ etc. This objection is based principally upon the absence of testimony as to the hour at which the sun sets, but that is a matter of which the court takes judicial knowledge, and if the defendants thought it important, they should have asked the court to instruct the jury in regard thereto. 7. Further, he objects to the refusal of the court to give certain instructions requested by him; but we consider the points raised, so far as competent at all, are well covered by those given, and it was made plain to the jury that the defendants’ negligence, in order to [321] create a liability, must have been the proximate cause of the injury. 8. Defendants contend that if they were guilty of negligence, yet if the plaintiff was also guilty of negligence which contributed to the injury, the plaintiff cannot recover. Negligence on the plaintiff’s part which would relieve the defendants of liability must be the approximate cause of the injury, and the requests séek to make it his duty to avoid the accident if he saw the situation at the time. Although the evidence fails to disclose that he carelessly failed to escape by some means available to him as he saw it, and fails to make distinction as to the cause of the injury, contributory negligence of the plaintiff which would defeat recovery must be the proximate cause thereof. It is said in 29 Cyc. 526: “While it is held that the negligence of the person injured is sufficient to defeat recovery if it contributes in any degree to the injury, yet to defeat recovery plaintiff’s contributory negligence must be the proximate cause thereof. ’ ’ We find no prejudicial error, and the judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.