
    Argued December 31, 1929;
    affirmed March 4, 1930
    TOOLEY v. SPOKANE, PORTLAND & SEATTLE TRANSP. CO.
    (285 P. 261)
    
      
      Fletcher Rockwood of Portland (Charles A. Hart and Carey & Kerr, all of Portland, on the brief) for appellant.
    
      A. E. Clark of Portland and Wm.W.Smith of Estacada (Clark & Clark of Portland on the brief) for respondent.
   RAND, J.

Plaintiff, a passenger for hire on defendant’s bus, sustained injuries in a collision between the bus and an automobile. This appeal is from a verdict and judgment in favor of plaintiff.

There are but two assignments of error, namely, the court’s refusal to give a requested instruction and its denial of a motion for a new trial.

After the court had instructed the jury and placed it in charge of a bailiff, defendant requested the court to charge the jury that the question of defendant’s negligence in selecting the driver “be specifically withdrawn from the jury as not an issue in this case.” Counsel stated at the time: “I make that request because the point was covered somewhat by argument of counsel, and the jury, I think, should be straightened out on that.” In denying the motion, the court, as shown by the bill of exceptions, ruled: “Well, I have read to the jury verbatim the charges of negligence contained in the complaint, and I have instructed the jury that the plaintiff can only recover if you (he) prove one or more of the elements of negligence as contained in the complaint, by a preponderance of the evidence, and that such negligence, if any, was a proximate or contributing cause of the accident. I think that covers the situation.” Defendant was then granted an exception.

The record is wholly silent in respect to the argument which was made to the jury. There was no exception taken or ruling made on the argument to the jury and there is nothing to show what matters were argued before the jury. Various alleged acts of negligence were charged in the complaint, but negligence in respect to the selection of the driver was not one of the elements charged and there was no evidence offered upon that subject by either side. It was not an issue in the case and, for that reason, unless wrongfully brought into the case, no instruction upon that question would have been material or proper, and then the only instruction would have been that the jury would have no right to consider it in the case as it was not a matter in issue. In fairness to plaintiff’s counsel, we deem it proper to state that neither in the record nor in the briefs, nor in the argument here, is any reference made to what was said leading up to this request, nor is there any intimation that any improper statement was made. Under these circumstances, the court having already instructed the jury as to what elements of negligence were charged and having also instructed it that it should consider those matters only and disregard everything else upon the question of negligence, it was proper for the court to deny the motion.

The grounds relied upon in support of defendant’s motion for a new trial, as stated in the motion itself, are newly discovered evidence, excessive damages and no evidence to support the verdict. The first ground has since been abandoned. As to the second ground, no improper conduct on the part of the jury is charged, and no error was. committed by the trial court in the trial of the cause. We, therefore, are not at liberty to question the amount of the damages awarded: Timmins v. Hale, 122 Or. 24 (256 P. 770); Sigel v. Portland Ry. L. & P. Co., 67 Or. 285 (135 P. 866); Buchanan v. Lewis A. Hicks Co., 66 Or. 503 (133 P. 780, 134 P. 1191). Upon the third ground, the evidence was not only conflicting but there was ample evidence, if believed, to warrant the verdict. The contention now made that the natural conditions surrounding the collision was that the evidence of the witnesses should be disregarded and the natural conditions control cannot be sustained under the circumstances, disclosed by the record. The bus, at the time of the collision, was on the wrong side of the road. The reason for its being there and whether it was traveling at an excessive rate of speed are all disputed questions. The case, therefore, was purely one of fact for the jury.

For these reasons, the judgment appealed from must be affirmed:

Coshow, C. J., McBride and Rossman, JJ., concur.  