Swiderski

This is an action in tort in which the defendant in the district court prevailed, and the plaintiff in the action appeals to this court from the judgment.

It is agreed that damage resulted to appellant from a collision of two automobiles, one being driven by appellant, the other by appellee, on an Oregon public highway. The accident occurred just before midnight on the 22nd of July, 1941. Negligence of appellee is claimed to the effect that at nighttime he carelessly, without control of his automobile, without proper lookout for on-coming traffic, and with but one headlight lighted, drove his automobile at an excessive speed and upon the left side of the highway. Appellee alleged contributory negligence on behalf of appellant.

At a pre-trial hearing the following was agreed to by both parties:

In the trial of the case before court and jury the court instructed the jury upon negligence and contributory negligence but made no mention of the legally designated speed at the point of the collision.

Upon the conclusion of the instructions counsel for appellee addressed the court as follows:

The Court replied: “Exception is granted.”

There was evidence in the case to the effect…

(dissenting).

I think the District Court should be affirmed. The oral request for an instruction on statutory designated speed and the effect of excessive speed made by appellant for the first time at the close of the court’s instructions to the jury came too late and was in disapproved form. Not to so hold seems to me to unjustifiably fail to apply the long line of federal court decisions requiring that requests for instructions be made in writing before the court instructs the jury. (See footnote 1 of the majority opinion for examples of such cases.)

The ruling of the majority here, in my opinion, originates the impractical theory that the setting up in the pre-trial order of the issue of designated speed and excessive speed as one of the issues to be tried has the effect of placing on the trial judge the burden of himself formulating a proper instruction and instructing the jury on that issue without request from either side. I disagree with that theory and do not think it is applied in practice. Often in the trial of cases both sides prefer that the court do not instruct the jury on one or more of the issues however material, because of later developments or of some…