*1
513
rеhearing
21, petition
Argued
5,
March
affirmed June
by opinion September 27,
denied
Cross-Respondent,
Appellant,
v.
JONES,
MITCHELL
Respondents,
BROS. TRUCK LINES
al,
Cross-Appellant.
Respondent,
PURDY,
Richard Ryan. respondents the brief were On Bostwick Bryson & and Calkins Calkins. & Robert Thwing, Atherly Atherly & Butler,
Darst B. Eugene, argued for and filed brief re- the cause Espelund. spondent Wheatley Wheatley Jaqua, & Gardner,
G.Wm. Eugene, argned filed the cause and a brief re- Plumley spondents Truck Lines, Bros. Mitchell Schamburger. argued Stiner, Portland, the cause for P.
Alonso cross-appellant Purdy. respondent, With him on the Lindberg Gary Veatch, W. Lovett & briefs were Eugene. Gilbert, D. and Gerald Portland, Stiner, j. McAllister, *4 damages personal for action in-
This is resulting automobile from an accident. juries The trial Espe- in favor of granted a nonsuit defendant court against tke and a verdict kind tke returned of $236,809.28, defendant in tke amount and of the Mitchell Bros. Truck found favor defendants Ryan. Plumley, Schamburger, Bostwiek and Lines, judgment appeals Plaintiff from the of nonsuit judgment Espelund favor of from the on the and except Purdy. verdict in favor of the other defendants Purdy cross-appeals judgment Defendant against him. place Highway on accident took near Oakridge Eugene,
Dexter Lake, between where the two-lane runs east west. On evening of October loaded 31, 1970, a lumber truck Bros, belonging to defendant Mitchell overturned on south side The overturned truck highway, completely came to rest ain field beside the pavement off the and the shoulder. The truck driver Schamburger notified defendant of the accident. Bros, Schamburger, employed by who was Mitchell Safety early as its went Director, scene morning salvage operation. next conduct He was accompanied by Plumley, safety super- defendant employed by visor Mitchell Bros.
Schamburger, charge salvage who was of the operation, determined that the truck should be un- large loaded and then be moved with a crane. He large arranged to have a crane sent the scene from Portland and then hired the defendant Bostwiek, trucker, who owned a a local truck with a crane, operate taking furnish his truck in the bundles off the overturned Ryan, of lumber truck. Defendant had a friend of Bostwiek who driven Bostwick’s accompanied prior occasions, Bostwiek to the scene accident. they at arrived
When the scene, Bostwick’s *5 518 highway position a near to driven off the
truck was operations unloading truck, and the thе overturned Plumley top began. Schamburger on worked and setting the around bundles cables load, the overturned Eyan while Bost- Bostwick’s truck, drove lumber. operating self- top the the truck wick worked loading bundles of After two on the boom. device decided that Bostwick’s was removed, lumber were got down around. Bostwick should be turned truck Eyan top backed the truck and truck, off the highway parallel westerly until to the direction a Turning private he drove there, drive. he came to a highway private directly into a across the the truck highway from the north at the a road which entered point of the overturned west Mitchell 200 feet about Bros, stopped to wait traffic on He there truck. highway pass that he back the to so could into the facing highway The truck was then and turn around. away highway, the with the extend- from boom north, highway. ing rear of the truck toward the to the as to how near the truck was to Estimates varied private pavement. road in The which the the truck away highway. stopped sloped from the down was keep Eyan, using the to brakes instead truck placed rolling incline, down the truck in from keep gear to used clutch reverse and backing rolling hill or down the onto from either to truck move This caused the back аnd forth Eyan slightly to time while time waited for pass. highway to on the traffic Eyan, truck, in Bostwick’s waited for While a Espelund Purdy traffic, defendants in the and break Espelund’s from the the scene east with toward drove highway straight was in the lead. vehicle and good. Espelund Purdy visibility could see salvage they operation after came the scene of the hill of a mile the crest of about a third over a Espelund he drove down the hill noticed the east. As began overturned truck beside using Purdy, his had slow down brakes. who without following Espelund been at distance five six lengths speed of car 55 miles an hour, Espelund noticed after he crested hill thаt began slowing accordingly down. reduce his speed, using lightly. Espelund, own his brakes hav- *6 ing considerably, passed down slowed overturned truck and the road where the Bostwick truck was sitting. Following Espelund, Purdy passed the over- approaching and turned lumber truck was the Bost- according testimony, wick truck when, to his he saw suddenly highway. the truck move toward the Purdy quickly put on his Alarmed, brakes. He testified:
* * this logging about time I saw this red highway, truck to toward the move and it scared me ** * just my and I hit death, brake slammed ** my on brake Purdy’s began and skid, car slid across the lane of into the eastbound traffic where it collided, about 250 west feet Bostwick truck, with the riding. eastbound car in which was Plain- driving, warning tiff’s was husband, who had no danger Purdy’s already until car, he saw in the east- sliding sideways Espelund, bound toward lane, him. squeal Purdy’s heard the meantime, tires, Purdy’s looked in his rearview mirror and saw car sliding, quickly. and accelerated He was some distance highway by the down the time the collision. conflicting There is evidence as to whether the Purdy actually testified that moved. Bostwick truck testified while other witnesses move, saw he swinging, while still hut the boom the truck was they no at saw movement still others testified the truck did not move onto event, all. In private highway, all times in the remained but at roadway. except against thе defendants, all
Plaintiff’s case judgment granted Espelund, of nonsuit, who jury. held was submitted all other defendants. exonerated liable, granting the trial court erred Plaintiff claims involuntary Espelund’s for an non- motion defendant neg- question Espelund’s argues that the suit, jury. charged ligence gone Plaintiff should have negligently: Espelund “(1) giving any his vehicle without Slowed proper signal plainly of his to do visible intent so.
“(2) keep proper maintain a Failed were or enter- lookout for other vehicles which ing upon said “(3) suddenly his vehicle without first Slowed ascertaining that the movement could made be *7 safety.” Espelund that no evidence was in found have
We slowing way negligent any in his vehicle. He testified speed gradually approached as he his that he reduced Purdy’s Bostwick truck. the overturned testimony Purdy accord, and shows that in also is Espelund’s speed. Espelund in decrease of was aware signal evidently gave no of his intention to slow applicable requires signal statute a but the down, only in the ease of a sudden an intention such decrease (3). There is no speed. 483.126 OJRS evidence that
5M any suddenly Espelund or of other slowed Ms veMcle give required have him to which would circumstance signal. a passed Espelund that is evidence
There looMng salvage truck he toward overturned check his rear view mirror and that he did not scene, top the hill between time he over the came Purdy’s attempt stop. heard The the time he keeping inadequate could found he was have that an Ms no evidence that failure is, however, lookout. There any played part causing keep proper lookout nothing suggest the accident. There is that position Purdy of his veMcle either caused to' slam any way any brakes, on or interfered in his with attempt by by plaintiff’s or husband to avoid correctly The the collision. trial court concluded that any negligence by Espelund did not the evidence show plaintiff’s injuries. whiсh could have been a cause of judgment of The nonsuit is affirmed. jury, language trial court instructed below, ‹ out in
which is full set if an unforesee- ‹ concept is known intervening “There to the law the may interrupt proximate chain causes which cause flow of situation, you. and I will define that to intervening “You are instructed an cause is a new independent and an force which breaks the connection between original injury. cause and an you find from “If the evidence 'and under the instructions intervening of plaintiff’s injuries an the Court that there was such cause of the any, intervening if and that such cause person responsiblе could not have been foreseen using original any, cause if
the same or similar reasonable care under circumstances, person responsible then such original injuries. cause if for said for such liable injury “You instructed are.further is not a consequence negligence and natural which would not have interposition it but for the resulted some new inde- 522) (Continued page *8 522 iatervening the connection” “breaks be-
able canse person injury, original then the and an tween an cause responsible original is not for the cause liable injury. of facts this case Plaintiff contends that the question justify of inter- do the submission of the vening jury. cause to the complaint as submitted
Plaintiff’s
negligent
alleged
were
that
various defendants
general
alleged
there
a
that
three
areas. It was
negligent
approaching motorists of
failure
warn
salvage operation,
by
that the
the hazards created
negligent,
operation
the Bostwiek truck
of
negligently.
In contend
his
drove
vehicle
intervening
ing
for the
cause
there was no issue
Purdy’s
argues,
jury plaintiff
actions
in effect,
foreseeable result
as matter
a
law,
a
were,
relies Hills v.
other defendants’ actions. She
McGill
(1965), Dewey
vrey,
402 P2d
v. A. F.
476,
240 Or
722
(1963)
515,
233
Plaintiff,
intervening
complains
cause,
and
the instructions
application
their
should have been limited to
objections
certain defendants. These
were not raised
plaintiff’s exception
trial
where
court,
was to
giving
They
instruction on this
issue.
will
Lilley
here for the
not be considered
first
time.
v.
Phillips, Inc., 210 Or 278, 281-282,
The offered in evidence the Foreword published by Manual Drivers’ Mitchell Bros. guidance Truck Lines of its drivers and other employees rejeсtion assigned and the of this exhibit is represented was to the as error. It court that Seham- burger aware of the contents of was the Foreword Bros, of his duties with that one and Mitchell maintaining updating the Drivers’ Manual. The “Schamburger offered to show that exhibit had knowledge judgment” superior he was and that personally mis- make that motorists sometimes aware absent-mindedly recklessly as stated takes or act the Foreword. permitted lati wide trial
The court Schamburger’s expertise proving tude in safety, including questions attendance at about Ms safety safety familiarity his with seminars, responsibilities in connection with and Ms literаture, large safety operations for a trucks, fleet investigations. salvage operations and with accident Sehamburger also allowed show that Plaintiff was safety court, manual. however, had written safety properly from the manual statements excluded *10 might created in minds itself doubt the wliich have jury applicable of to which standard care was as Sehamburger, explained jury by to the the law, to contained in the the instructions Drivers’ the court, assignment merit think there is in tMs no Manual. We of error. plaintiff offered evidence a statement
The Sehamburger deposition defendant made in a Ryan that if had known intended he the effect highway Bostwick truck across the the to drive precautions have taken some he “would around turn it specifically with that he it,” in connection would flagman. Plaintiff contends in tMs used a court have “was evidence relevant offered to show the that the Sehamburger part prop- of defendant failure on the of erly supervise the activities the driver of the red (Bostwick) truck.” Mack high- Bostwick truck had crossed the the
Since private driveway way in a standing was the Espelund when the the of' north side approached the and the east, vehicles riding plaintiff approached from vehicle in which was flagman the think the absence of a when west, the we highway was Bostwick truck crossed the irrelevant. rejected testimony, Schamburger, did not men- in the flagman sitting tion need while truck was driveway in a off the jury evidently Ryan determined guilty any negligent conduct which was cause the accident. › Even Sehamburger’s if statements
could have understood to been indicate need for precautions additional while the truck was in the drive way, we do how their not see exclusion could have been prejudicial jury under the circumstances. as the If, operation found, the Bostwick truck was not a Schamburger’s cаuse then accident, failure to supervise operation safety precautions its and to take regard in that could have been a substantial factor causing plaintiff’s injuries. In trial court contended that Schamburger’s prove statement tended to that Scham- Bros, burger, acting right for Mitchell had the salvage operations. question control the On replete Schamburger record was with evidence that charge operations including of all the scene, at testimony by Schamburger himself. In fact, trial Ryan court agent instructed the was *11 Bros, acting scope Mitchell within the of his employment at the time of the accident. The exclusion prejudicial of could this evidence not have been › verdict, required After a we are to view the evidence -light prevailing party. in the most favorable to the Reed v. Wil 388, 390, (1966); son, 244 Or P2d 418 501 McPherson Cochran, v. (1966). 399, 4011, Or 414 P2d 243 321
526 Schamburger’s right to plaintiff on of issue Ryan.
control assignments error do not other
Plaintiff’s require instruc court’s The trial extended discussion. a statute fi consistent is tion on excuse for violation Williams, 264 with recent in Barnum v. our decisions (1972) DeBuse, 264 P2d and Freund v. 71,Or 504 122 (1972). The to let a witness P2d refusal 447, Or 491 customary procedures question when answer about highways being heavy equipment moved on or near is no offer of made cannot reviewed, be proof. (1967). P2d 894 v. 246 Or Jenkins, 280, State rulings do involve re Other adverse on evidence not versible error. Purdy, cross-appeal, his also con-
Defendant submitting tends erred in the trial court question jury. Purdy intervening causes to the argues law, as matter of Ms action slam- that, ming on his was a natural and brakes foreseeable consequence negligent of the Bost- movement independent an truck, wick ing could be interven- pointed As we have out in connection above, cause. appeal, plaintiff’s this contention with is well taken.
Purdy requested, and the trial court refused emergency give, on the doctrine. instruction Our hold this recent cases instruction is be avoided, rаrely, give if will a ever, and that failure the in struction constitute reversible error. Ballard v. Ricka- fi opera- “You are instructed that while the violation of an negligence negligence itself, in and
tional statute if have been under the such showing may by be excused that the statute could not complied with the exercise of reasonable care existing.” circumstances then there
527
baugh
P2d 1080
207, 485
Inc.,
200,
259 Or
Orchards,
(1971);
upon opposed to evidence which established physical fact.” any
Our attention has not been called to
evidence which
physical
is in direct conflict with
established
fact.
The
under the circumstances,
instruction
abstract
was,
given,
and should
have been
but was not reversible
general
cautionary
The instruction
error.
any particular
attention
did not call
nature,
prejudice
Purdy.
evidence.
find
We
no
See Sturm
(1963).
P2d 212
Smelcer,
251,
v.
235 Or
255,
Finally, Purdy argues
the trial
erred
court
admitting into
evidence Exhibit
which
C,
was off-
by
ered
defendant Mitchell Bros. Exhibit
isC
engineer’s
drawing
scale
of the accident scene on which
positions of the overturned truck,
the Bostwiek
Purdy and
point
and the
Jones
truck,
vehicles at the
drawing
were
The
of collision
marked.
shows the Bost-
paved
off
private
and well
drive
truck in
wick
engineer testified that
portion
position on the
in that
Bostwick
he drew the
per-
him
other
furnished
informatiоn
basis of
precise
conflicting
evidence
sons. There
including
position
evidence
truck,
Bostwick
*13
jury
it was closer
found that
could have
which the
highway,
portion
and that the boom
paved
of the
the
pavement
slightly
itself.
over the
or
extended to
Wigmore
following
on Evi-
in 3
is stated
rule
The
1970):
(Chadbourn
§
rev.
239-240, 794
dence
anony-
diagram
map
received
cannot be
or
“A
by
witness.
mously;
also
the document
some
So
be
it must
‘verified’
legends,
or
borne on
specific
marks
additional
particular,
must
verified
but not
* * *
sponsored.
thus
similarly
The witness
be
by
qualified
standing sponsor
observation
must be
**
*
represented
speak
in the
the matters
of
*”
* *
picture.
Stages,
Oregon
136 Or
v. Southern
In Mansfield
substantially,
(1931)
al-
rule was
that
In map accurately portrayed position Bostwiek map prepared appear nor does it that the truck, any by person with first under instructions furnished knowledge appears, hand therefore, of the facts. It involving important map, feature of the fact dispute, properly which was in was not verified any witness. exhibit should have been admitted into evidence.
Under the circumstances this case, however, justify jury the error does not reversal. The was in parties’ argu the courtroom and heard extensive concerning admissibility ments of this exhibit. hearing argument, After this could not have impression been under the conceded the position accurately map, truck’s be shown on the engineer prepared special that the who had *14 knowledge of the facts. Defendant later introduced in drawing showing evidence another the truck closer to extending with edge the the boom out to the pavement. of the was thus furnished with a presentation Purdy’s visual of version of the facts as well as of Mitchell Bros., could not have been giving any special weight misled into position to the Bostwiek truck as shown on Exhibit C. find judgments As we no reversible the error, trial are affirmed. the court specially concurring.
DENECKE, J., Justice McAllister As Mr. states, at trial object did not to the form “intervening cause” instruction, and, majority therefore, does consider whether it is in correct form. such, an use future to dissuade
In an effort opinion instruction offer the I instruction, incorporates terms proper form. is in It years which, but phrases in use have been which jury. unintelligible completely to a my opinion, are in dissenting part. in J., TONGUE, trial my opinion, plaintiff to a new is entitled In Bros. Truck Lines against Mitchell defendants Safety I Sehamburger, of what because Director, its excluding plaintiff’s error to have been consider testimony by following defendant trial of the offer on Sehamburger pretrial deposition: of his at time going you red truck If had known “Q you go would have taken some road, across to precautions with in connection it? Certainly. don’t cross the road You “A taking precautions. manner without your safety hazard, this constitutе a Did
“Q opinion, truck crosses like that? when you think manner where does in the “A I —(cid:127) say, right going know there like I I didn’t are driveway I could there, after, but see over awas pulled figured there and had backed in he where I safety a hazard time constitutes around, but it portion you of the road with boom main cross truck. going you to do known he was that, If had “Q flagman signs up put ?
you have would people I had out there. would have “A I would myself flagged if I had known that him this have doing, guess. I were his intentions what people there and suf- was sufficient There “Q job? equipment to do ficient job any down a time shut for rea- could “A I general protect public, safety yes, sons and *15 done this case. have I would yonr job? “Q And that’s “A it is.” Yes, sir, was relevant contends this evidence
Plaintiff Schamburger part of defendant the failure show properly supervise of the driver of the activities an admis- truck and was admissible as the red Mack negligent failing supervise he was sion that of the red Mack truck. activities of the driver by the defendants in their brief, is contended It that: however, questions plain- set out in “The and answers ' assignment Brief under this
tiff’s from defendant error are Schamberger’s deposition in- only ‘crossing volve the road.’ Scham- ger merely ber road, stated that when a truck crosses the going good road, or is to back it is a off flagman testimony But, idea to have a not state that out. his did stopped, when a truck is off the driveway, waiting in a and while it is road, a truck for vehicle that can see the a distance of 1,600 flagmen present. should be That feet, exactly presented the situation in this ease. The involving plaintiff happen did accident the truck was while crossing the road. The truck did not any and was present and did hazard not block either lane of clearly everyone visible to traffic, in its position by nothing There is in ger, testimony chamber as set out in the Third Assignment suggests which Error, there flagman be sitting available shoidd when a truck is driveway.” merely (Emphasis added) reply, plaintiff contends that: In “Again, defendant takes a narrow view the salvage (if operation. fact) The fact indeed it is a temporarily stopped truck was does not charge duty supervision. those in relieve salvage operation many where If in a vehicles are *16 given they time, at a off the road are all
involved, duty supervise cease until does not and warn the go again upon the road- vehicles such time as the salvage operation way. must be entire the Rather, operation the duties with viewed continuous as a period continuing parties of over the entire of the time.” may agree. truck be the It I am inclined to highway actually crossing at the time of the was not majority, by the however, the accident. As stated this facing highway, the with was then rear of the truck extending of the truck and toward to the rear its boom majority, by the there was stated As also the keep testimony on that to incline; truck was that the rolling kept the incline the down driver the truck from operating manner that caused it in a the clutch slightly and forth from time time as he move back highway pass. on traffic for the waited testimony that the rear wheels There was also edge foot or “a two” the truck were beyond рavement. of the truck The boom extended had truck and a bucket on the of the end, the rear swinging and back forth. which was by majority, Finally, as stated defendant approaching that as he was testified the truck suddenly highway; move toward the he saw it my “slammed death” and he me to brake,” “scared go causing the center over line his car to and into the riding. path car in which testimony accept I cannot this the con- Under “[T]he defendants that these truck tention did not * * *” present “[t]here hazard is noth- * * * testimony Schamburger [offered] ing in the suggests flagman there should be a which avail- driveway.” sitting merely in a truck able when a agree that contention with majority appears to Tbe tbe Thus, on this issue. its decision tbe basis majority that: states high- had crossed truck Bostwick “Since driveway private
way and was STANDING Espelund highway when the side on the north approached east, from the Purdy vehicles riding approached plaintiff was which vehicle in the from when flagman absence think the we west, crossed the Bostwick * * *” added) (Emphasis irrelevant. *17 opinion from contrary, that of the I am theOn Schamburger testimony the of defendant offered the Purdy ap- reasonably jury found that have could swinging proached with its boom this truck, the scene highway suddenly a toward the to out backed behind, point or two” -within foot wheels were “a which its at extending swinging pavement, the boom with of the Purdy to was led believe that the that further; even starting process across the in the truck was then highway these circumstances the truck and that under oncoming present in- traffic, a hazard to fact did in Purdy. cluding defendant jury opinion that the could rea-
I am also testimony sonably the offered have found Schamburger under these circum- that defendant flagman should have been available and stances a negligent failing in were to defendants these highway flagman provide at the on the rear of stop approaching in- motorists, either truck to Purdy, cluding in the event that the truck defendant upon highway, back out about to fact, inwas, proceed, safe to signal it was them that in the going upon to back out truck was that the event approaching the passed. until such motorists had my these Under circumstances it belief that prejudiced by the exclusion of this evi- jury dence. Because the found favor defendant my contrary require Bostwiek does not, view, majority. my opinion, held In result, as fact is not overcome sufficient to the well established presumption prejudicial. that this error was although my
In it is view this addition, evi- primarily upon question dence was relevant Bros, negligence of defendants Mitchell Schamburger, upon question it was relevant also flagman, whether, in the absence of a defendant Bost- negligent wick was led conduct which starting upon believe that he was back his truck Had been informed the admitted importance flagman during operation, of a this might have well declined return a verdict in favor of defendant as well as Bostwiek, defendants Mitchell Bros, Schamburger. portion
For these reasons I dissent from opinion which holds that the trial court did excluding testimony. err in this
ON FOR PETITION REHEARING Holman, J., participate did in this decision. Clayton Luvaas,
Douglas D. and Paul L. McCool petitioner. Eugene, for Fraser, Richards & Cobb, appearance contra. No dissenting. J.,C.
O’CONNELL, rehearing. grant petition for There I would finding in trial court erred basis for is a involuntary granting in favor of defendant nonsuit Espelnnd. from which substantial evidence There was Espelund’s conduct concluded that could have During contributing cause of the accident. was a following Purdy’s cross-examination, the occurred: you you I when tallied want to ask whether “Q. hap- telling policeman how this to the him accident you pened, follows: stated as whether “ Plighway ap- the at ‘I was westboxmd Suddenly proximately unit to an hour. 50 55miles because of a front me slowed tipped over on its side the shoulder applied that was The ear in front me of the I No, see, its I lost control. let’s brakes, but my applied brakes, but lost control. I slid across land hit- the center line and into the eastbound ting the eastbound car.’ saying yon remember of “Q. Do officer? probably there, If I did, “A. written but it is * * * my then I I can’t couldn’t think condition, straight anyway.” ‹ Purdy’s police out-of-court statement If there is evidence show admissible, officer ‹ During testimony police report officer in whose objected: appeared, and. statement ex the statement again Espelund. cluded as to defendant When statement was during Purdy’s testimony, objection no read made.
536 Espelund lost control his vehicle because establishing suddenly, Espelund’s slowed thus conduct contributing as cause the accident. majority apparently
The have decided ground statement is is hear inadmissible on the that it say. why amI unable to understand an out-of-court person by a statement who is now a made witness subject concerning therefore is to cross-examination statement should be who admissible. Those study made have most careful law evi including Wigmore, dence, McCormick, drafters of Evidence, Uniform Code drafters of the view. › my of Evidence, Model Cоde and others, share Purdy’s out-of-court statement was consistent with his statement on the stand. The should be permitted to decide which of these statements is the rely reaching more credible and on it in a decision. my position previous is If not in accord with our holdings, simply say I would that it is time to overrule the m. fi argued Purdy’s It has been uncer tainty he to whether made the out-of-court statement
renders it too insubstantial consider. The answer to argument weight always of evidence has question jury. been a for the petition rehearing granted. should be J., also dissents.
Tongue,
›
Wigmore
(Chadboume
3A
See
Evidence
1970);
996
rev.
Evidence,
(Cleary
McCormick on
1972);
601-604
rev.
9A ULA
Evidence,
(1) (1965 draft);
Rules of
63
Rule
(b)
ALI Model Code of
Evidence,
(1942).
also,
Rule 503
See
States,
DiCarlo v. United
(2nd
1925) (L. Hand, J.).
6 F2d
Cir
fi
Cf.,
Thomson,
513,
611,
Madron v.
245 Or
419 P2d
423 P2d
(1966);
Chenoweth,
74,
v.
McKinnon
176 Or