Kelley v. Stout Lumber Co. , 123 Or. 647 ( 1928 )

AFFIRMED. Plaintiff had a verdict in an action to recover damages for personal injuries sustained while employed as a "choker setter" in carrying on certain logging operations of the defendant company. Defendant appeals.

Error is assigned on the denial of defendant's motion for judgment notwithstanding the verdict. It is not contended that the allegations of the complaint are insufficient to state a cause of action. There was no motion for nonsuit or directed verdict. We have several times stated the motion made is directed to the state of the pleadings: Section 202, Or. L.; Bernstein v. Berg, 123 Or. 343 (262 P. 247), and cases therein cited. It is not to test the sufficiency of the evidence.

Defendant contends there was no allegation of special damages and it was, therefore, error to admit testimony relative to loss of wages. It is alleged in the complaint that plaintiff sustained a "loss of time from his work and labor." While there are authorities which hold similar allegations insufficient upon which to predicate a claim for special damages, we believe the better reasoned cases sustain the pleading: Hitchings v. Cityof Maryville, 134 Mo. App. 712 (115 S.W. 473); Wilbur v.Southwest Missouri Electric Ry. Co., 110 Mo. App. 689 (85 S.W. 671); Brandt v. United Rys. Co. of St. Louis, 153 Mo. App. 16 (132 S.W. 39); Neel v. Ryus, 149 Mo. App. 111 (130 S.W. 76);Chesapeake O. Ry. Co. v. Plummer, 143 Ky. 97 (136 S.W. 159); Russell v. Metropolitan St. Ry. Co., 35 Misc. Rep. 293 (71 N.Y. Supp. 765); 17 C.J. 1014. In some jurisdictions great particularity of averment is required, but we believe the modern trend of authority favors simplified pleading. The object of the rule requiring special damages to be pleaded is that the adverse party will be apprised of the nature of the claim for damages and to prevent his being taken by surprise at the trial. It is idle to argue that defendant was not advised by this pleading that plaintiff would claim damages on account of loss of time If it desired greater particularity it could have been obtained by motion to make the pleading more definite and certain. No error was committed in admitting this testimony.

Defendant complains because the plaintiff, on direct examination, was permitted to testify that he had been injured before the happening of the accident in question. An examination of the record discloses that there was no attempt on the part of the plaintiff to recover damages for aggravation of a prior injury. He stated that he had fully recovered from the first injury. We are at a loss to understand in what way this testimony could have been prejudicial to defendant. There is no merit in this assignment.

Much space in the briefs is devoted to the alleged misconduct of counsel for plaintiff in his argument to the jury. However, no ruling was requested nor was any made relative to the question now sought to be reviewed. As stated in Watts v.Spokane, P. S. Ry. Co., 88 Or. 192 (171 P. 901):

"The language and conduct of counsel will justify a reversal only when connected with some judicial error on the part of the trial judge."

Objection is made to the following instruction of the court, defining proximate cause:

"Proximate cause might be defined generally as the means which lead to or might naturally be expected to produce the result. That is to say, it is any act or omission which might produce or fail to prevent the injury, or which directly puts in operation another agency whereby injury is inflicted and which would not have happened but for the original negligent act or omission."

The first part of this instruction is approved in Elliff v.Oregon R. N. Co., 53 Or. 66 (99 P. 76); Palmer v.Portland Ry., Light Power Co., 56 Or. 262 (108 P. 211);Doyle v. Southern Pacific Co., 56 Or. 495 (108 P. 201). The latter part of the instruction was merely an explanation of the definition of proximate cause: 22 R.C.L. 111.

The other two assignments are entirely without merit.

Finding no error in the record, the judgment is affirmed.

AFFIRMED.

RAND, C.J., and BEAN and BROWN, JJ., concur.