Twitchell v. Thompson

Mr. Justice Benson delivered the opinion of the court. 1, 2. The assignments of error raise but two questions for our consideration. The first of these relates to the action of the trial court in overruling plaintiff’s challenge for cause of three jurors. The examination of these men on voir dire discloses that the defendant was then president of a bank in Pendleton; that the juror Folsom was a depositor therein; and that the jurors Eldridge and Butler were debtors of the bank for considerable sums. When the challenge as to Folsom was overruled plaintiff had not exercised any of his peremptory challenges and did not use one upon [289] this juror. At the time the court passed upon the challenges as to the jurors Eldridge and Butler the plaintiff still had two peremptory challenges available and employed them in dismissing these two men from the jury. We think that the question as to the jurors Eldridge and Butler is disposed of by the decision of this court in the case of State v. Humphrey, 63 Or. 540 (128 Pac. 824), from which we quote: “It is well settled that, although the court sitting in the trial of the cause may have erred in overruling a challenge for cause, yet the error is cured by the exercise of a peremptory challenge against the juror in question.” As regards Folsom, the alleged error of the court in retaining him as a juror over plaintiff’s objection, and, indeed, as to all three of the jurors named, this court has answered such objections quite fully in the case of Harrison v. Pacific Ry. & Nav. Co., 72 Or. 553 (144 Pac. 91), in which we read thus: “The alleged bias of the jurors of which the defendant complains consisted in the fact that the plaintiff was the president and principal owner of a bank in Tillamook, which was patronized by at least nine of the jurors who sat in the trial of the case. They were either depositors in the bank or owed it small sums of money, and all declared in substance, on voir dire, that the indirect relation they sustained to the plaintiff by virtue of their business dealings with the bank with which he was connected would not influence them in their decision of the case. This feature was elaborated by the examination of the jurors in question and over the objection of the defendant the court accepted them for the trial of the cause. * * We cannot say as a matter of law that the relationship described above disqualified the jurors. The propriety of such men acting in that capacity is a question of fact to be determined by the trial court from all the evidence, and [290] unless an abuse of discretion clearly appears, we cannot overturn its conclusion. The men themselves were before the court. The judge observed them and under such circumstances was far more capable of determining whether they would act impartially than we who only see the paper record. ’ ’ 3. We now come to a consideration of plaintiff’s second contention, which is that the trial court erred in its refusal to give two instructions which were requested by appellant, and in giving one to which plaintiff objected. It is not necessary to set these out in full for the one point urged is that, in the application of the doctrine of “last clear chance” the defendant should be held liable for the injuries incurred, if after he saw plaintiff’s danger, or if in the exercise of ordinary care he could have discovered it, he might still have avoided the accident. The instruction as given by the court would have been satisfactory to plaintiff if it had contained the words, “or if in the exercise of ordinary care he could have seen him on said street. ’ ’ However, this court has definitely adopted the doctrine expressed by the Supreme Court of California in the case of Herbert v. Southern Pacific Co., 121 Cal. 227 (53 Pac. 651), in which Mr. Justice Temple says: “Doubtless, notwithstanding the negligence of a plaintiff has put him in peril, yet if his danger is perceived by the defendant in time, so that by the exercise of ordinary diligence on his part injury can be avoided, the defendant will be held for the injury. But that is based upon the fact that a defendant did actually know of the danger — not upon the proposition that he would have discovered the peril of the plaintiff but for remissness on his part. Under this rule, a defendant is not liable because he ought to have known.” In the case of Stewart v. Portland Ry. L. & P. Co., 58 Or. 377 (114 Pac. 936), Mr. Justice McBride says: [291] “In order to invoke the ‘last clear chance doctrine,’ plaintiff must plead and prove that defendant, after perceiving the danger and in time to avoid it, negligently failed to do so.” This statement of the law has been approved and followed in the cases of Scholl v. Belcher, 63 Or. 310 (127.Pac. 968); Richardson v. Portland Ry. L. & P. Co., 70 Or. 330 (141 Pac. 749). The court therefore did not err in refusing to instruct the jury in accordance with plaintiff’s theory. Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.