*1 354
Argued July 12, 1971, affirmed March 1972 RADER, AND GIBBONS Respondent,
REED COMPANY, Appellant. P2d *3 argued Triplett, the cause for Thomas M. Portland, appellant. were him on the briefs Souther, With Kinsey, Spaulding, Williamson & Schwabe. Oregon City, argued the Bowerman,
Donald B. respondent. Njust, cause for the brief were Misko, On Bowerman & Sams.
Before Chief Justice, O’Connell, McAllister, Bryson, Justices. Howell Holman, J. McALLISTER, wrongful
This is an action for death. Plaintiff judgment had a verdict and in the amount of $40,000 appeals. and defendant
Plaintiff’s intestate, Steven was killed Eader, p.m. driving June at about 8:30 while he was easterly Highway his car in an direction on 212 in county vicinity Clackamas in the Linn. West A rock apparently entered the windshield of his car and causing struck him head, death. There were eyewitnesses no who saw the rock strike the car. A highway new was under construction in the area at general and defendant was the time, contractor for project. In connection with its construction ac- tivities, defendant had constructеd a “haul road” near Highway roughly parallel 212. The haul road ran highway lay in the area of the accident, and above plaintiff’s theory on a hillside. It was rock which killed Steven Bader rolled or fell from plaintiff the haul road. Defendant contends that failed prove theory, and also relies on evidence support theory flung its own the rock was *4 passed which tires of a truck Eader’s high- car on the way.
At the close all the defеndant evidence, of moved ground for a directed evidence verdict on the that the did not show that the fell the haul road. rock from The motion was denied. Defendant also moved the complaint specifications court strike to from the all negligence. granted of This motion was as to an alle gation negligent using that defendant was a haul dangerously highway, proximity road in close to the specifications but was denied as thе other two negligence failing to maintain a barricade or other — protective prevent falling device rocks from onto highway failing provide from the haul and road, highway. traffic controls on Defendant also ex cepted submitting to the trial court’s instructions specifications negligence jury. two to the The first assignments challenge rulings four of error these raise the whether there was sufficient evidence negligence. of causation and of rulings. find no error in these We There was ample evidence from which the could find that the highway, rock came the haul from road above prevented that defendant could have had accident adequate employed an maintained barricade or stop highway some form of traffic control to traffic equipment moving while on the haul road. There testimony large at the time of the that, accident, using were trucks or construction vehicles the haul policeman regularly patrolled high- A who road. large way continuously testified that trucks moved and that he had, occasion, the haul road clocked the speeds up per they to 40 miles trucks at hour while were with rock. loaded
There was also evidence tended to show had fallen onto from the haul that rocks
359 was aware defendant and that occasions road on earlier this. of gravel surface. rock and had a
The haul road highway was a Along there to the side closest ridge sizes. One of various of loose rocks “berm” or averaged approximately that the berm witness testified pictures height; show the haul road of the two feet appears than two feet in lower somewhat berm, protective many or devices No other barriers areas. signals flagmen were provided, trаffic and no or were employed of the accident. at the time challenge assignments the admis of error
Other
falling
testimony
seen
rocks had been
on or
sion of
prior
prior
Evidence of
occasions.
to the
under some circum
is admissible
occurrences
similar
negligence
general
evi
rule,
action. As
stances in a
negligence
prior
is not ad
accidents or acts of
dence of
negligence.
speсific
prove a
act of
Saunders
missible to
(1936).
155
In the case the character of continuing clearly condition was at issue. Plaintiff negligent failing contended that defendant was danger precautions protect against take of rocks *6 falling highway to the from above. The evidence ob- jected to tended to show both the existence of a dan- gerous and that defendant had condition notice of the dangers. question The real is whether the circum- sufficiently stances were similar in each instance. Only similarity, complete identity substantial not required. of is See 70 ALR2d at circumstances, seq. depend, elements must be similar will et What of allegedly dangerous the nature of the on con- course, in each case. dition the Rader accident
In this case occurred at p.m. during daylight 11, about 8:30 June evidence that hours. There was construction vehicles very at the time were on the haul road of the accident. placе. in The was berm testimony
The Irwin Officer was that dur ing he traveled the that month of June section of the many highway frequently, that and times he saw highway working. while defendant rocks on the was actually however, that he never testified, He also saw during any except blasting operations, fall rocks employed during flagmen blasting. were that He did spot any specific highway pinpoint on the not where he had seen rocks. was struck windshield that his testified
Comer in not by know, which he did source of rock, equip- May. day early morning in There was hours of a working tune. The road at the the haul ment very happened near the this found that could have and that the berm accident, of the Rader scene place the time. at place, of these inci- and circumstances The time, sufficiently of the Rader similar to those dents are this evidence was not error. admission of accident, and prove thаt the movement of tends evidence danger equipment haul road created a of acci- on the Mr. that suffered Rader. Since Comer dents like notified defendant about also testified he directly his rock which hit his windshield evidence defendant’s on the notice of the relevant dangerous condition. Knapp Peter and testified
Witnesses April they saw a boulder roll down across the Knapp the haul road. Mrs. from the area of testified came the matter to defendant’s attention. The under construction at haul road was time, dislodged by apparently caterpillar boulder en gaged road construction. The boulder crossed *7 quarter highway about a of mile from the scene Knapp of the Rader accident. Mrs. also testified that highway during saw other rocks on she month or prior at death, to Rader’s times when two construction working equipment the haul road.
Although circumstances of some the boulder in- surrounding different from those cident are the Rader properly the evidence was we think accident, admitted. relationship physical between the haul road and very significant highway, a factor, remained the to tended show that same. The evidence rocks which dislodged by activity were in the area of the haul road danger were a to and traffic, that defendant danger. was awаre of this suggests
Defendant
that the admission of evi
prior
by
dence of
occurrences is rendered erroneous
limiting
the absence of an instruction
the use of the
proper purpose.
evidence to its
Such instructions
approved
Clary
were mentioned and
v. Polk
County,
(1962)
231 Or
372 P2d
and in
County,
(1920).
Marion
Coates v.
96 Or
P 903
334, 189
duty,
It was defendant’s
however, to ask for such an
judge
required
give
instruction, and the trial
is not
to
requested.
such an instruction unless
Eleanor Walls
Clark,
414, 417-418,
Or
Defendant’s offer of which the trial court rejected, summary was made in the form of a McReary testify, counsel. would he said, that in his the rock entered Rader’s ear had been
363 opinion on based This dual tires. between and that surface, worn one rock was on that the fact of sides on two of tire rubber were traces there rock. ‹ McReary also would stated that
Counsel opinion from between dual had flown in his rock opinion This the Rader automobile. tires entered of the rock that the diameter the fact was based оn the dual tires of was the same as the distance between according driver, had to the truck which, truck passed accident, car the time Rader’s at about already McReary’s opinion, in evidence, and, traveling it was on a entered the car when the rock rising trajectory. proper opinion, we think no
As to the first Although McReary testified foundation had been laid. projects experience on construction he thаt from his occasionally picked up knew that rocks were between testify that he had dual he did not ever examined tires, any special competence that he had such rocks or determining appearance from rock’s whether it had, tires. been between dual fact, if we even assume that the
However,
witness
express
properly qualified
expert opinion
an
subject,
proof went
the offer of
in
further, also
cluding McReary’s opinion
flung
that the rock had been
tires. ›
car
between dual
into the Rader
from
‹
analytical
chemist,
also
as an
An
called
defend
ant, testified that he had tested the
substance on
black
the rock
and that
in his
it was
kind used in
rubber
auto
or
mobile
truck tires.
› When
proof
offer of
contains
an
both admissible and inad
reject
matter,
it is
error to
the entire offer.
missible
not
Freed
Cholick,
(1963);
P2d
233 Or
man
White,
Smith v.
425,
364=
In addition the facts offer of stated *9 proof opinion, as a for evi- "basis this other relevant jury. was Strike, dence before the Robert a truck driver for one of defendant’s subcontractors on the highway project, day testified that on the of the ac- driving cident he was track with daal wheels on the highway. jast picked ap He had a load crashed highway, had come the rock, down haul road onto the going passed and had headed west. Rader’s ear, east, opposite his track cаr and, when the the cab of track, Strike heard noise which he described as a “load crash”. he returned he saw the Rader When ear to rest, where had come and he testified that point approximately that 300 feet from point passed where had he the car and heard the “load, Hedge, crash”. Michael However, who was driv- ing along in the same as direction Rader shortly and who saw car the Rader both before .shortly imрact after with the rock testified that any he had no recollection of westbound vehicles at He time. could not for certain that there any had not been westbound traffic, however. proof The offer of did not state that the wit- opinion assumption ness’s was based on the passed Strike’s track the Rader car at crucial passed and that heard a time, Strike load noise as he assumption the car. the witness’s Howevеr, passed by Strike’s track the Rader car is evidenced his reliance on the fact that the width of the rock was the same as the distance between Strike’s track tires. testimony As Hedge, seen, we have of the witness directly contradictory, while not did east some doubt testimony. Strike’s was entitled to dis- believe it.
Although
hypothetical
upon
state of facts
any
may
expert opinion
include
is based
which an
supported
are
facts
of assumed
combination
especially
assumptions,
such
evidence,
substantial
clearly
conflicting, should be
is
where the evidence
express
should not be allowed
witness
stated. The
assumption that
an unarticulated
based on
an
v.
true. Carruthers
evidence
certain controverted
Lippold
(1942);
Phillips,
P2d 193
645, 131
169 Or
(1928); Lehman v.
P 210
Kidd, 126
Or
are
There
also
P 476
Knott,
59, 70, 196
100 Or
may not in
a witness
statements in these cases that
jury.
usurp
province
have re
vade or
of the
We
may
objectionable
jected
that evidence
be
the notion
jury’s
Beals,
function. Ritter v.
as an invasion of the
*10
(1961).
opinion
Thus
225
The final error concerns matter of any and we de- not raised the trial court form, cline to notice it.
Affirmed. concurring.
HOLMAN, J., disagreement majority The between the and dis senting opinions guilty is whether the trial court was of error when would not allow an reversible en gineer opinion, that, his the rock which killеd decedent had been between dual tires and that it had flown from between such tires when it entered following (vir testimony decedent’s vehicle. tually expert) all which came from the of was allowed go jury: the trial court to to the
1) the rock; width 2) space the width of the between the dual tires of passed which some truck, evidence indicated
decedent’s vehicle at the time of the accident; 3) space that the between the tires and the width
of the rock were the same; 4) that the dark on two marks sides the rock
were rubber marks; 5) that the was flat rock from wear on a third side; 6) top that the chrome at the of the windshield and supporting up-
the rod the sun visor were bent top ward above the level of the of the wind- *11 ; shield
7) rising trajectory the rock that was on a when
it entered the vehicle “as if it had started at ground rising upward”; and was 8) pick up that dual tires rocks and throw them and why
that this is some trucks have “rock bars” installed duаl between their tires. very I con- am not circumstances, such
Under legal problem whether fine about the cerned testify the rock expert that allowed to should be by wheels of through dual the windshield thrown jury in show was allowed to The witness a truck. exactly the accident claimed the defendant detail how why explaining expertise in to use his occurred and important part testi- of his The was so contended. it expertise show mony used his tо which he was that rising- on a the rock had to have been how damage trajectory oc- to the vehicle have for the my this, opinion it In all it is as did. view of curred insufficient likelihood that the trial that there is express his court’s refusal to allow the witness any had effect on the outcome of the ultimate justified. therefore, reversal not case, and, opinion. concurs in this J., Howell, dissenting. O’CONNELL, J.,C. opinion justifies rejection majority
The McReаry’s testimony ground on the that he was not qualified testify as an witness he did not since ever examined he had rocks had been picked up any special between dual tires or that he had competence determining appearance from a rock’s fact whether had in been between dual tires. How plaintiff’s object counsel ever, did not to the evidence, ground. it, nor did trial court exclude on gave regarded trial court no indication whether it Mc Reary sufficiently expert as in his opinion had rock been between dual the record contains tires; however, substantial evi McReary’s general expertise dence as to safety engineering, McReary testified that professional experience being he knew from of rocks *12 picked up may between dual be tires. There cases obviously beyond scope which a is so the of a expertise witness’ that we would hold that the trial court would abuse its discretion if the witness were permitted testify, objection to even an absent from the opposing party. majority apparently this believe disagree. to be such a I case. disqualified simply
A is witness an not as previously specific because he has not the observed relationship sought cause and effect to be shown in the case which he is a witness. He is entitled to upon principles draw the broader which form the expertise foundation for his and reason from those specific principles explain to cause and effect specific connection in case. That was what Mc Reary purported present to do case. ground excluding
anAs for alternative the evi majority opinion holds dence, that the form of the hypothetical question improper in that it failed оpinion state that witness’ was based on the assumption passed that Strike’s truck the Rader car at the crucial time and that Strike heard a loud noise passed why I as he the car. am unable to understand necessary assumption part hypothetical a question. McReary’s It was conclusion that rock rising trajectory as it entered the hav car, ing passing from between dual been thrown tires of reasonably This could be truck. conсlusion reached testimony relating a consideration of without Strike’s passed as he the noise he heard the Rader car. assuming hypothetical But was defective in it not excluded the trial form, was court for that The trial court said: reason. going I am not
“THE Now, COURT: let this this rock as to how an witness gotten of this at the windshield thrown could have car. * * * having proposition as This is the same investigate go ac an automobile out and someonе They happened. haven’t cident and tell us how permitted *13 yet.” in this state that apparent was excluded on it that evidence Thus is the ground nothing of the do with the form a that to had question. appears that the the trial court felt It that jury invading province in of the witness was the drawing which the manner in the his conclusion as to jury Although did the not have to accident occurred. helpful accept opinion, if have been ac- this it would Consequently, cepted. I the court’s think that trial excluding I it reason was erroneous. Therefore for trial. remand for a new would reverse and concurring opinion In Mr. Justice Holman his position if trial court erred in takes that even the the McReary testify, the court’s action not permitting sufficiently prejudicial to constitute reversible was not disagree. I error.
It be in mind that rock which must borne very penetrated the windshield of decedent’s car lаrge heavy, approximately with dimensions of and length in four and one-half to five nine inches inches in width. Unless someone with scientific juror explained possible knowledge that it was a picked up be of that size to and thrown for a rock likely through it that the windshield, is would happen. is to could It be noted that not believe it testimony explaining that “the rock was on a trajectory rising it entered the left vehicle,” when un- theory explained, equally with the consistent the haul road above and rock came from bounced pavement into windshield. The from the permitted explain witness should have been his the rock was thrown truck tires ground way. did not rise from the other some I the statement three of footnote majority ruling opinion, that “where the of the judge any ground upheld, trial is it correct on will be though ruling may even his reasons for the been have applicable judgment erroneоus.” That rule is where a ground rendered an incorrect there but is a cor ground prin rect will sustain it. However, the ciple is different where court rules on the ad missibility specific In of evidence. the latter case if objection improper is made and sustained on an ground, upheld appeal the exclusion will not be if appears ground given proper that had the been obj proponent evidence of the could have obviated the ection. ‹ *14 ‹ Dougherty, 43, 383, (1947); Larson v. 72 S D 29 NW2d 384 Minneapolis Chicago, Co., Paul, Colburn v. St. Omaha & R. 109 377, (1901); McCormick,
Wis p. Evidence, NW Law of