Byrd v. Lord Brothers Contractors, Inc.

473 P.2d 1018, 256 Or. 421, 1970 Ore. LEXIS 336

• Court: Oregon Supreme Court
• Decided: September 11, 1970
• Status: Published

Opinions

HOLMAN, J.

Plaintiff brought an action to recover damages for personal injuries occasioned when he was hit by a piece of concrete. Plaintiff appealed from a judgment entered on a jury verdict for defendant. The only issues relate to the admissibility of evidence.

At about ten o’clock in the evening, plaintiff was operating his motor vehicle on Lombard Street under the 33rd Street overpass in the city of Portland, when a. piece of concrete came through his windshield and injured him. Defendant was engaged in the .remodeling of the overpass, which involved removing a concrete walk and railing along one side. A bulkhead had been constructed for the purpose of confining debris. The testimony was in dispute as to its efficiency. Concrete had previously been broken away below the bulkhead for the purpose of inserting beams for its support. No work was being done at the time of the accident, but work had been performed that day. The overpass was open to pedestrians and vehicular traffic at the time of the accident. There was no direct evidence concerning the cause of the falling concrete.

Defendant introduced evidence, to which plaintiff objected, that at approximately the time of the accident, four or five boys around junior high school age were seen running west on Columbia Boulevard at its intersection with 27th Street. The intersection where the boys were seen is six blocks west and one block north of where the accident occurred. However, the north end of the overpass is approximately at the intersection of 3Srd Street and Columbia Boulevard, six blocks from where the boys were seen. There was no other evidence to connect the boys to the chunk of concrete which struck plaintiff.

The problem is one of relevancy. The conclusion sought to be drawn is that the boys threw the concrete from the overpass. The fact from which this conclusion is to be inferred is that they were seen six blocks away running in a direction away from the north end of the overpass at about the time of the accident. The question is whether this fact has sufficient probative bearing on the issue to make it relevant and thus admissible. McCormick says as follows:

“What is the standard of relevance or probative quality which evidence must meet if it is to be admitted? We have said that it must ‘tend to establish’ the inference for which it is offered. How strong must this tendency be? Some courts have announced tests, variously phrased, which seem to require that the evidence offered must render the inference for which it is offered more probable than the other possible inferences or hypotheses, that is, the chances must appear to preponderate that the inference claimed is the true one. It is believed, however, that while this might be a reasonable standard by which to judge the sufficiency of all of a party’s proof to enable him to get to, the jury on the issue, it makes too heavy a demand upon a given item of proof at the admissibility stage, when we are gathering our bits of information piece by piece. And, in fact, much circumstantial evidence is commonly received which does not meet so stringent a test * * *. It is believed that a more modest standard would better reflect the actual practice of the courts, and that the most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence¶ * * (footnotes omitted; emphasis his.) McCormick, Evidence 317-18, § 152 (1954).

The jury, of course, realized that there was the possibility that the concrete was thrown from the overpass by someone, because the public had access to the overpass. From the jury’s knowledge of everyday life, it could have legitimately concluded that boys are inclined to run away from the scene of a wrong. From the same knowledge, they could believe that children are more likely to throw things from an overpass than are adults. Under these circumstances, we cannot say that the admitted testimony had no probative value.

Admittedly, the boys could have come from numerous other places than the overpass and could have been running for any one of the various reasons that "boys run. The relation between the boys and the overpass six blocks away is an attenuated one, but we believe that, after the introduction of the evidence in question, there was a greater possibility that the concrete was thrown from the overpass than would have so appeared in the absence of such evidence. Had the boys been seen running from the end of the overpass, no one would have any difficulty in concluding that the evidence was highly relevant. "When the same thing occurs six blocks away, its probative value is very greatly lessened. However, we cannot say it has none. "We do not mean that it was probable that the boys threw the concrete or that the evidence would justify the submission of a case to the jury if they were being sued for having caused the injury. Wig-more has the following to say:

“On the other hand, the judges constantly find it necessary to warn us that their function, in determining Relevancy, is not that of final arbiters, but merely of preliminary testers, i.e., that the evidentiary fact offered does not need to have strong, full, superlative, probative value, does not need to involve demonstration or to produce persuasion by its sole and intrinsic force, but merely to be worth consideration by the jury. It is for the jury to give it the appropriate weight in effecting persuasion. The rule of law which the judge employs is concerned merely with admitting the fact through the evidentiary portal. The judge thus warns the opponent of the evidence that he is not entitled to complain of its lack of absolute demonstrative power; a mere capacity to help in demonstration is enough for its admission:” (footnote omitted; emphasis his.) 1 Wigmore on Evidence 411, § 29 (3d ed 1940).

The plaintiff had the burden of persuading the jury that the defendant was negligent. The defendant is entitled to make this burden as heavy as possible by calling to the jury’s attention any fact which would raise a not completely unreasonable possibility that the untoward occurrence happened in a manner inconsistent with its negligence.

When the offered testimony gets to the outer fringes of relevancy, courts allow the trial judge a certain amount of leeway in evaluating its admissibility. 1 Conrad, Modern Trial Evidence 53, § 37 (1956) expresses it this way:

“* * * Before evidence can be excluded on the ground of irrelevancy, it is essential that it appear so beyond doubt. If the question is doubtful, the settled rule is that the evidence should go to the jury for evaluation by it * # (footnote omitted.)

Plaintiff also contends that the trial court erred in admitting the following testimony over objection because it called for a conclusion which was the ultimate question to be decided by the jury:

“Q. State whether or not, Mr. Pereival, there was any way for debris to come down, and if so, explain how it could come down.

Ci% & # % ^

“A. The only way it would have to come over the top of the bulkhead.”

Even if the evidence was conelusory and therefore not admissible, no prejudicial error was involved. Substantially, the same evidence came in without objection from another witness.

“Q. Were there in fact any breaks in that bulkhead or holes in it that would have permitted debris to pass through?

“A. No.”

The judgment of the trial court is affirmed.