Consolidated Freightways, Inc. v. Roy G. Holzapfel

This is an appeal from a judgment in favor of appellee after a jury verdict, taken by appellant Consolidated Freight-ways, Inc.

On November 9, 1957, appellee was injured as a result of a collision between the vehicle he was driving and a Consolidated Freightways truck and trailer; the accident occurred on U. S. Highway 30 near the community of Blalock, Gilliam County, Oregon. The matter, originally filed in the Oregon Circuit Court for Multnomah County, was removed on diversity grounds to the United States District Court for the District of Oregon under 28 U.S.C.A. § 1441 .

Appellants set forth in their answer a defense of contributory negligence, their contention being that appellee drove at a speed greater than was reasonable under the circumstances then and there existing. Pre-trial proceedings were had and the pre-trial order reads as follows:

Appellants’ specification of error complains that the court failed to give its proposed instruction numbered XIX, and although instructing on negligence and contributory negligence, the court failed entirely to instruct the jury as to designated speeds as set forth in the Oregon Statutes, particularly ORS 483.104, and failed to…