Williams v. Lombard

170 P. 316, 87 Or. 245, 1918 Ore. LEXIS 273

Opinion

Mr. Justice Benson

delivered the opinion of the court.

1. Defendants present two questions for our consideration. One is that the court instructed the jury upon the doctrine of the “last clear chance” in the absence of any evidence which would render such instruction pertinent. The only direct testimony relating thereto is that of defendants ’ chauffeur who testified quite positively that he did not see plaintiff or his sled until he was within five feet of them and that he instantly used every possible endeavor to prevent the accident. However, there was evidence tending to show that there were arc lights at the corners of 24th and 25th Streets extending out for a short distance over the streets and that defendants’ car had its side lights burning and there was considerable snow on the ground. These circumstances might well be taken into consideration by the jury in determining whether or not the chauffeur testified truthfully as to when he first discovered plaintiff and his primitive equipage and the court did not err in instructing the jury thereon.

2, 3. Defendants next urge that the court erred in refusing to give the jury the following instruction:

“And I further instruct you that you cannot allow the plaintiff anything in this case, if you should believe from the evidence in this case, that those old ailments or injuries were aggravated or made worse because of the accident the plaintiff complains of in this case.”

We can only conjecture what counsel intended to express when he framed this charge; but we feel confident that he never meant what the language used clearly imports, which is, that if the injuries received at the time of the accident resulted in aggravating old ailments or injuries, that fact would be a complete defense even as to the hurts which were the immediate result of the collision. It is true that plaintiff cannot recover for an aggravation of prior injuries unless such conditions are pleaded, but no such doctrine is suggested in tlie instruction submitted to tbe court and it was properly refused.

Tbe judgment of tbe lower court is affirmed.

Aeeirmed.

Mr. Ohiee Justice McBride, Mr. Justice Bean and Mr. Justice Burnett concur.