*1 Argued February May 2, petition affirmed for rehearing May 29, denied COONEY, Appellant, McGEE, Respondent. Peter A. Schwabe, Jr., Portland, argued the cause With him on the appellant. briefs were Schwabe & Portland. Schwabe,
Walter J. Cosgrave, Portland, argued the cause for Cosgrave
respondent. him on brief were & With Portland. Kester,
HOWELL, J. *2 damages this action to recover
Plaintiff filed descending injuries while a when she fell for sustained appeals ramp retail store. Plaintiff in defendant’s judgment defend- a verdict for the entered on from a ant. presented question whether the court is
The sole relating excluding expert to whether erred in slope ramp’s degree it unsafe. rendered the the of alleged, complaint inter the alia, Plaintiff’s ground the defend- plaintiff as a result of fell to maintaining ramp sloping negligence “in a ant’s sharply entrance level of from the downward plaintiff display an called premises room.” The ato testify concerning intending engineer him to have During plaintiff’s ramp. slope degree of the of the slope expert of the proof described the of offer ramp follows: and testified * * * yon upon seen what have Based “Q regard me—with let to all, first of well,
there, and— ramp, drawing what is the Talbott, Mr. the slope ramp ? in that in 3.8. It’s one “A greater in four ? than one littleA “Q steeper in four. than one Yes, “A to be a safe what is considered Talbott, Mr. “Q premises ramp ? in business slope used a for point me. ten—excuse One to one Well, “A you useage, slope public and normal is the ten find buildings, slopes only but on of side- not it you. join driveways, where is where there walks, depression. slope That’s the most common in use. “Q And— per-
“A There’s some conditions which would possibly using eight. mit one in upon drawing,
“Q based Now, Plaintiff’s upon having Exhibit #1, based also looked at premises, you position these would be in a to ex- press regard with to whether the in issue was safe?
“A Yes. opinion? What is that
“Q “A It was not.” safety
The trial court considered the issue of the knowledge lay to “within be of a person” proper subject and therefore not a testimony. involving expert testimony
A similar case also con *3 cerning safety slope ramp the aof was before this court in Ritter al, v. Beals et 225 Or 358 P2d 504, (1961). the trial court There, allowed an archi testify opinion tect to that in his the was unsafe. appeal, jury we held On that “the could have found that the was unsafe without the aid of the archi give jury but it was not error to the tect, the benefit learning,” admissibility of his and the of his testi mony judge. was within the sound discretion of the trial disagreed It is obvious that this court has on the issue expert testimony of when is admissible where that testi mony jury falls between the situation where the is equally qualified well to find the truth and the situa clearly qualified is not as tion where the as the Naney expert. Lane, In 367, (1967), plaintiff’s caught husband fell when he his
52á An architect a metal on a stair tread. heel on strip not “a safe design.” testified that the metal was strip held that the of snch evidence we receipt On appeal, and matter of discretion with the trial judge was a to express that it was not error to permit expert his opinion. Co.,
In Koch v. Southern Pacific 335, 266 Or court held that an this majority P2d 770 a those of a rail could to testify aspects witness expert made it vehicular dangerous road which to crossing extra- it was testify but that he could not traffic, D Bowl, Inc., D In Yundt v. & hazardous. with three dis court,
“There where a *, is not well and clearly needs equally qualified help find are to the truth. There also situations where is jury clearly without equally qualified help from such as testimony offered here. It opinion area and clearly qualified is the clearly unqualified granted between the trial judge
where should be excluding a certain latitude of decision in receiving opinion testimony.” or 259 Or at expert 259. three dissenting justices
The their expressed felt the they as to was why opinion majority minority opinions admissible. differences of reflect this court case *4 them necessary to In repeat and it is not here. in Ritter v. Beals, supra, instant the admis case, as to whether testimony sibility
535 degree slope falls was unsafe because of the of its Yundt, in the trial within that area as we said where,’ judge granted should be a certain latitude of decision excluding receiving testimony. in conclude or We did not abuse its discretion in the trial court excluding testimony.
Affirmed. dissenting.
TONGUE, J., Although complete transcript was appears not this case to involve facts similar included, in al, to those involved Ritter v. Beals et 225 504, (1961), P2d in which we held that the trial judge admitting expert opinion err in did not similar testimony. incongruity holding This is the.result of our as reaffirmed in Yundt v. D D Bitter, Bowl, Inc., & (1971), 247, 259 Or to the effect that in such the admission a case or exclusion of such evidence solely judge. within the rests discretion trial I subscribe to a rule under cannot which re covery recovery seriously injured or denial of of two involving persons in cases such similar facts is so dependent upon by an exercise of discretion two trial judges. expert opinion I that in cases the believe both previously approved by was admissible under the test expert opinion the effect that such court to testi mony whenever it could have is admissible been of “help” appreciable or “aid” to the in understand arriving ing at a correct the facts and result. See 525; ‹ supra at and Yundt D al, Ritter v. Beals et D & ‹ As by majority, this court said in stated Ritter v. Beals 524, 525, al, P2d 1080 that: et “* * * could have found was un- * * the aid of the architect safe without
'526 at 258. › See also Sandow
Bowl, Inc.,
Weyer
supra
O’Connell, sent. finding
However, the basis for the decision was our that: “** * * helpful opinion was, however, relevant and Evidence and our timate fact if the ultimate fact cannot be › [*] cided expert In Yundt v. & “* * * “* [*] holding from this (3d by ** has majority quoted ed based that: 1940) D D person only expert then his 21, 1923, from the same true criterion opinion.” Bowl, Inc., receive § with may express that: appreciable help? (Emphasis approval is: evidence On this 247, 258, added) from 7 equally upon subject * * *” which Wigmore, on an ul- well can de- the