Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-11

plaintiff would prove by his evidence,
and the alleged grounds of the negli-
gence upon which he relied, he,
among other things, stated: ut
will appear, l think, from the evil
dence that he was unable to see
north through this obstruction; in
other words through this car that
was standing there, and while he
was making the crossing, this car of
the defendant came in a south direc-
ton on the westerly track in front
Of the Brown building, and when he
did see the car why he whipped up
his horses and got pretty near across
the track, but the car was coming at
very rapid rate Of speed-too rapid
i don't know what the rate Of
speeds will appear in evidence here.
The approach of the car was
of such character that the plaintiff
here was not able to see, or not able
to hear; and no gong sounded, or
bell rung, no warning given, and the
rate of speed was excessive" The
Court: you say the plaintiff was
not able to see the car, and was not
able to hear it?" Counsel, proceed
ing: "The plaintiff was not able to
see the car, and was not abl to hear
1t. Now, 1 will read the
complaint, which, perhaps, states
more fully the facts" And, after
reading the complaint in full: "Now,
gentlemen of the jury, the testimony
will show you, I think, about this
state of facts. This is the
complaint here, gentlemen of the
jury, and we expect that the testi-
mony will establish these facts. y
Thereupon defendant, by its attorney,
made its opening statement to the
jury. Upon plaintiff being called
and sworn as a witness in his own
behalf, defendants counsel, based
upon the opening statement of plain
tiff's attorney to the jury, and upon
the pleadings in the case, objected to
the introduction of any evidence,
and moved the court for an order
dismissing the action.
The court rendered judgment in
favor of the defendant on the plead
ings and opening statement, from
which plaintiff appeals.
Bean, j.. The state of this state
L. o. L., Sec 1872, provides that when
the jury has been empaneled and
sworn "the plaintiff shall state brief
ly his cause of action, and the issue
to be tried; the defendant shall then
in like manner state his defense. y
This statement is the privilege of the
attorney for each party, If he sees
fit to exercise it, and is obviously in
tended TO advise the jury, concern
ing the questions Of fact involved, in
order to prepare their minds for the
evidence to be heard, but is not in
tended to take the place of COM
plant or other pleading, and how
full it shall be, within reasonable
bounds, is left to the attorneys dis
cretion. To relate the testimony at
~ will 40 tp1nnofnH
Thompson on Trials, Sec, 267. AS
we understand the record in this
case counsel for plaintiff read the
complaint, and in effect stated that
he expected the evidence to prove
the facts therein alleged; therefore
the only question to be determined by
the court Is whether or not the COM
plant states the cause of action.
This was practically conceded by the
defendant when 1t filed its answer;
moreover If defendant had the right,
and desired to take advantage Of
counsels statement for plalntiff, the
better time would have been at the
close of such statement, before plain
tin was called to the witness stand,
and before defendants counsel made
his opening remarks to the jury,
Assuming the statement of plaintiffs
/ counsel to be fatally defective, we
seriously question II the right to rely
on such defect was not waived by
defendants failure to make a timely
motion. We do not consider it a safe
practice to decide a case upon the
opening statement of counsel to the
jury, that such a procedure is con-
ducive to the rights of litigants, or
that there is great necessity for ex-
ercising this power except in cases
where it Enthusiastically appears that
the action is based upon a contract
prohibited by morality or public pol
icy In Oscanyan " Winchester
Arms Co., 1903 U. s., 261, the state
ment disclosed that action was