Carter v. Moberly

501 P.2d 1276, 263 Or. 193, 1972 Ore. LEXIS 393

• Court: Oregon Supreme Court
• Decided: October 19, 1972
• Status: Published

Opinions

McAllister, j.

The plaintiff, David Carter, brought this action to recover damages for personal injuries sustained in a three-vehicle collision on Highway 38 between Drain and Reedsport. Plaintiff was driving an unloaded cab-over-engine flatbed truck and trailer east toward Elkton. The defendant, Roy Frisk, was driving west in a Pontiac car towing a 20-foot travel trailer. Walter Moberly was driving a Jeep pickup following the Frisk trailer. On a straight stretch of two-lane highway about seven miles west of Elkton plaintiff’s truck collided with the side of Frisk’s trailer and then with the Moberly Jeep. Plaintiff was injured and Moberly was killed.

The crucial factual issue at trial was whether the plaintiff’s truck or the Frisk trailer was on the wrong side of the center line. Plaintiff testified that he was in his proper lane and that the Frisk trailer swayed across the center line and struck the cab of his truck and that the Moberly Jeep at about the same time turned into the eastbound lane striking the truck head on. Mr. and Mrs. Frisk testified that plaintiff’s truck “drifted” across the center line into their lane, that plaintiff’s truck did not kit their car, hut the truck cab collided in a glancing manner with their trailer and then hit nearly head-on with the Moberly Jeep. Parts of the Frisk trailer and much of its contents as well as other debris was strewn on the highway. The jury returned a verdict in favor of both defendants and plaintiff appeals.

The first assignment of error is the trial court’s exclusion of evidence concerning Moberly’s operation of the Jeep pickup some distance before it arrived at the scene of the accident. Plaintiff’s complaint alleged that after Frisk’s trailer collided with the cab of plaintiff’s truck “defendant Moberly, either to avoid the debris from the trailer, or in an attempt to pass the Frisk vehicle, swerved into the eastbound lane” striking plaintiff’s truck. Plaintiff alleged that Moberly was negligent in driving across the center line into plaintiff’s lane of travel, in failing to keep a proper lookout, and in failing to keep his vehicle under proper control. This assignment of error is based on plaintiff’s attempt to show that Moberly was engaged in a continuous course of negligent conduct and was probably trying to pass the Frisk vehicle at the time of the accident. Plaintiff’s offers of proof, summarized, are as follows:

Gary Kuykendall testified that on the day of the accident he was driving an 80 to 85 foot truck, loaded with poles and piling, westerly on Highway 38. At a point about five miles east of Elkton (thus about 12 miles east of the scene of the accident), when he was going about 50 or 55 miles per hour, Moberly’s Jeep passed him as they left a tunnel and approached a blind corner. The Jeep was going about 60 to 70 miles an hour, and pulled back into its own lane within fifty feet of the curve. Kuykendall testified that after it passed him the Jeep continued ahead at the same speed until it was out of sight, approximately sixty seconds.

Patrick McMartin testified that he, too, was driving westerly on the day of the accident in a truck and log trailer, loaded with 100-foot piling. At a place about three miles east of Elkton (ten miles from the accident scene), as he was driving up the “Elkton grade” at a speed of about 22 miles an hour, Moberly’s Jeep passed him at the “next to the last turn to the top.” The highway consisted of two lanes at that point, the Jeep was traveling 55 to 65 miles per hour or more, and visibility where the Jeep passed was a maximum of 100 feet. McMartin also testified that on the way up the hill he had observed the Jeep pass other ears behind him, and that the road coming up the hill winds so that there is no place to pass with “complete visibility.”

After the Jeep had passed McMartin’s truck, McMartin saw it following the Frisk vehicle within a mile of Elkton and he saw the Jeep “duck out” from behind the trailer in an attempt to pass. However, Frisk testified, without contradiction, that he had observed the Moberly vehicle following him for about three or four miles before the accident, and that during that time Moberly followed at a safe distance and never attempted to pass, although Frisk’s speed was only about 35 miles per hour.

Marion Jewett testified that he saw the Jeep pickup on the outskirts of Elkton, where it passed him •on a straight stretch going down a hill. Jewett was driving a pickup at about 45 miles per hour, and the Jeep as it passed was going 55 to 60 miles per hour. This incident took place about five minutes before Jewett arrived at the accident scene.

Plaintiff offered the above evidence to corroborate his testimony that the Jeep pulled out into plaintiff’s lane, and argues that the jury could have inferred from the rejected evidence that Moberly was in fact attempting to pass the Frisk vehicle at the time of the collision.

Since Jewett’s testimony does not show any negligent or unsafe passing by Moberly we are concerned only with the trial court’s rejection of the evidence of Kuykendall and McMartin. The trial court excluded their testimony under the general rule that evidence of negligence at some other time and place is inadmissible to prove negligence on the occasion in question. Warner v. Maus, 209 Or 529, 534, 304 P2d 423 (1957). The court held that the evidence did not sufficiently demonstrate a continuous course of conduct continuing up to the time of the accident, in order to come within a recognized exception to the general rule. Plaintiff argues that the evidence was sufficient to show a pattern of negligent driving, and that its exclusion was reversible error.

In cases involving allegations of excessive speed, we have held admissible evidence of speed at various distances from the accident, provided there Avas sufficient evidence to indicate that the speed continued up to the time of the accident. Shoopman v. Long, 252 Or 341, 449 P2d 439 (1969); compare May v. Mack, 225 Or 278, 356 P2d 1060 (1960). In those cases we said that the admission of such' evidence is Avithin the trial court’s discretion. See, also, Hanson v. Schrick, 160 Or 397, 401, 85 P2d 355 (1939). In this case plaintiff has not charged Moberly with excessive speed. It has been commonly held by other courts, hoAvever, that the admissibility of evidence of a party’s negligent driving at places more or less remote from the accident is a matter for the trial court’s discretion. See Annotation, 46 ALR2d 9.

Plaintiff argues, however, that in Shoopman v. Long, supra, this court abandoned the rule leaving the admission of such evidence to the trial court’s discretion. In Shoopman we said:

“This court has followed the rule that admissibility of evidence of speed at some point other than at the scene of an accident is within the trial court’s discretion. * * * The discretion mentioned in the cases should be more accurately described as the process of judging the offered evidence in its relationship to all of the evidence relative to speed. If it fits into a pattern with the other evidence and shows continued speed it should be admitted. If the evidence stands alone, as in May v. Mack, supra, it should be rejected. * * *” 252 Or at 342-343.

The language quoted indicates that in Shoopman we did not intend to change the rule, but to clarify it. More recently, in Yundt v. D & D Bowl, Inc., 259 Or 247, 486 P2d 553, 558 (1971), we struggled again with the meaning of “discretion” in the context of a ruling on evidence :

“Generally, when appellate courts speak of the discretion of a trial judge, they refer to an exclusive power of free decision not revisable or reviewable by an appellate tribunal in the absence of abuse. $ # #

“However, this cannot be the meaning of the term ‘discretion’ when a judge is faced with a decision whether to admit certain testimony of an expert after he has been deemed qualified. At this point, he must apply certain principles of laAv to his decision and he is not free of revision or revieAV. In the case at bar, it Avas not singularly a matter of discretion, but a question of laAv calling for an application of a rule of laAv to a particular set of facts. The true meaning of ‘discretion,’ when applied to the exclusion or admission of testimony from an expert Avitness, would be the power to make a choice from two or more legally valid solutions if supported by the facts. * * * When faced with an offer of proof, which may or may not be appropriate for jury consideration, the trial judge may, in certain circumstances, either admit or exclude the proffered testimony if he applies the correct principle of law and does not abuse his discretion.” (Emphasis added.) 486 P2d at 558.

In this case, the evidence in question was objected to as being too “remote.” Such an objection requires the trial judge to assess the probative value of the proffered evidence, and to weigh the probative value against various considerations which may militate against admissibility, such as undue prejudice, introduction of collateral issues, consumption of undue time, or unfair surprise to the other party. McCormick on Evidence (2d ed 1972), 439-440, § 185. If he finds the evidence to have no probative value, he must exclude it. If, on the other hand, it does tend to establish a fact in issue, and no contrary considerations are present in the particular case, the evidence must be admitted. Between these two extremes, however, is an area in which further judgment must be exercised. If the evidence has some probative value, but also presents difficulties such as those mentioned above, the judge must determine whether the value of the evidence outweighs, or is outweighed by, the offsetting considerations. We sometimes call the exercise of this kind of judgment “discretion.” Its exercise requires the judge to weigh the value of the evidence in light of all the circumstances of the particular case, and his conclusion, if it is reasonable, will not be disturbed on appeal. Precedent is of little value in reviewing such cases, because even when cases involve similar issues and similar types of evidence, the other factors which may properly influence the trial court’s ruling are highly variable.

(1) We simply determine whether, on the facts of the particular case, the trial court’s ruling was within the reasonable or permissible range. We need not determine whether his ruling was the only one possible. It may be that the record will support either admission or exclusion; if so, the trial court’s ruling will be affirmed, regardless of which solution we would prefer.

A recent example is Byrd v. Lord Brothers, 256 Or 421, 473 P2d 1018 (1970) in which we upheld the admission of evidence with relatively slight probative value. We pointed out there that “[w]hen the offered testimony gets to the outer fringes of relevancy, courts allow the trial judge a certain amount of leeway in evaluating its admissibility.” 256 Or at 426. We have taken a similar approach to evidentiary rulings which rest on relatively complex factual determinations. For instance, in Zeller v. Dahl, 262 Or 515, 499 P2d 1316, 1318 (1972) we said:

“These various facts may not have been sufficient to require a finding by the trial court that the statement in question did not qualify as an ‘excited utterance’ or ‘spontaneous statement.’ Because of such facts, however, we hold that the exclusion of such testimony by the trial court was not an abuse of the ‘considerable lee-way of decision’ that we have recognized in such cases, with the result that it was not error to sustain defendant’s objection to the offer of such testimony.”

See McCormick, op. cit. supra at 121-122, § 53.

In more complex cases, which present a number of interrelated factors for the trial court’s consideration, the “lee-way” allowed should be correspondingly greater. This is a fairly complex case. The testimony of Kuykendall and McMartin had some probative value; that is, it had some tendency to establish that Moberly was inclined to pass other vehicles under possibly unsafe conditions during the trip involved in the case. However, Frisk’s uneontradicted testimony was that after he passed Elkton, and especially during the three or four miles just before the accident, Moberly followed the Frisk vehicle at a relatively slow speed and made no attempt to pass. Also, if the testimony of Kuykendall and McMartin had been admitted for the jury’s consideration, it could have consumed the court’s time in the trial of collateral issues such as the identity of the Moberly vehicle, the similarity of the road and traffic conditions, and the accuracy of the witnesses’ observations and reporting. Moreover, it might well have been given undue weight by the jury. The trial judge could reasonably conclude that these dangers outweighed the limited probative value of the testimony. And where, as here, we cannot say that the trial judge’s ruling was erroneous and prejudicial, we will not reverse even though the reasons given by the trial court for his ruling are not the reasons upon which we rely. Rader v. Gibbons and Reed Company, 261 Or 354, 494 P2d 412 (1972); City of Portland v. Therrow, 230 Or 275, 369 P2d 762 (1962); Riley v. Good, 142 Or 155, 158, 18 P2d 222 (1933).

Plaintiff next assigns as error the trial court’s denial of his motion to strike from Moberly’s affirmative answer an allegation that plaintiff operated his truck at an excessive speed. Plaintiff argued that because the real issue in the ease is which party or parties were on the wrong side of the road, plaintiff’s speed, even if excessive, could not have been a proximate cause of the accident. He cites Furrer v. Yew Creek Logging Co., 206 Or 382, 292 P2d 499 (1956) and Erdman v. Inman, 165 Or 590,109 P2d 593 (1941). Neither of those cases holds that it is error to submit the issue of speed to the jury when there is a dispute as to which vehicle was on the wrong side of the road. They simply point out that, under certain circumstances, an erroneous or abstract instruction on the issue of speed may not be prejudicial. In Erdman, in fact, the opinion points out that the speed of the party who is on the wrong side of the road is a proper consideration for the jury.

“If defendant was driving on the wrong side of the road, the speed at which he was traveling would be important in determining the proximate cause of the accident.” 165 Or at 592.

The general rule applicable to motions to strike or to withdraw from consideration by the jury of one or more elements of the interrelated questions of speed, lookout and control is succinctly stated in Rogers v. Green, 241 Or 435, 440, 406 P2d 553 (1965), as follows:

“* * * It is difficult to conceive of many sitúations in which, given allegations of improper speed, control and lookout and given a jury question as to negligence, it would be error to submit all three to the jury.”

This is certainly not one of the unusual situations in which the court should have withdrawn from the jury the issue of plaintiff’s speed.

It is well to bear in mind that the motion to withdraw asked the court to hold, taking into consideration all the evidence, that plaintiff, as a matter of law, was not guilty of excessive speed or that his excessive speed was not a proximate cause of the collision. Rough v. Lamb, 240 Or 240, 243, 401 P2d 10 (1965). This the court obviously could not do in this case. After the initial collision between plaintiff’s truck and the Frisk trailer the truck crossed the highway and came to rest on the north side. It was after the initial crash that the truck and Moberly’s Jeep collided. The jury could have found, inter alia, that the speed of plaintiff’s truck was a contributing cause of plaintiff’s failure to keep his truck on the right side of the road after the initial crash.

We have approved the submission of the issue of speed in other cases involving collisions between vehicles traveling in opposite directions. Newbern v. Exley Prod. Exp. Co., 212 Or 458, 320 P2d 678 (1958) involved a head-on collision where each party claimed the other was in the wrong lane at the time of the accident. Plaintiff also charged defendant with excessive speed. The court held it was not error to refuse to withdraw this allegation from the jury, pointing out that an otherwise reasonable rate of speed may be excessive when the vehicle is in the wrong lane and is approaching another vehicle. The opinion distinguishes the Erdman case and holds that because there was substantial evidence that defendant was in the wrong lane, the issue of proximate cause was for the jury-

In Moe v. Alsop, 189 Or 59, 216 P2d 686 (1950) defendant objected to the submission to the jury of plaintiff’s allegations of negligence in speed, lookout, and control, because it was plaintiff’s basic theory that the accident was caused by defendant’s driving on the wrong side of the road. The court said:

“It would seem, however, that the jury may have found that driving on the wrong side of the highway was not in itself the proximate cause of the collision. Notwithstanding defendant’s negligence in driving on the wrong side of the highway, it should be apparent that the collision might have been avoided if defendant had exercised due care in the other respects mentioned. Any or all of the acts of negligence charged-—lack of control, lack of lookout, and speed—together with negligence in driving on the wrong side of the highway, singly or in combination, may have been the proximate cause of the accident. * * *” 189 Or at 73-74.

In the present case, the evidence was conflicting as to whether plaintiff was in his own lane at the time of the initial collision or had “drifted” across the center line when the collision occurred. Frisk testified that plaintiff’s truck drifted across the center line as it came around a curve some 430 feet west of the point of initial impact and that when he finally realized that the plaintiff was not going to turn back to his own side of the road Frisk attempted to avoid the collision by trying to get his car and trailer as far to his right as possible. The speed of the truck had an important bearing on Frisk’s ability to take evasive action and had a direct bearing on the issue of proximate cause. The Newbern and Moe cases are in point here and under the rule of those cases submission of the issue of plaintiff’s speed to the jury was proper.

Finally, plaintiff contends that the trial court erred in refusing to allow his expert witness to testify, in effect, that the location of the debris resulting from the collision of moving objects which thereafter continued to move is an unreliable indicator of the initial point of impact of the two objects. According to plaintiff, the jury, in determining which vehicle was on the wrong side of the road, had to rely heavily on circumstantial evidence, including “the condition of the vehicles, their location after the accident, markings on the roadway, the physical characteristics of the roadway, and the debris from the impact.” Much evidence was introduced by defendants to establish the location of the debris which plaintiff concedes was nearly all on defendant’s side of the road.

Plaintiff called as an expert witness Dr. John Powell, a professor of physics at the University of Oregon, with several years’ experience in the investigation of collisions. There was no challenge to Dr. Powell’s qualifications. Plaintiff asked Dr. Powell the following question :

“Q Is it possible, sir, when two objects are moving before the point of first contact and continue moving thereafter to make a determination of where that point of first contact took place from where the debris ends up?”

It appears from the offer of proof that Dr. Powell would have answered the question as follows:

“* * * the conclusion as to the point of impact which would rest solely on the evidence of the location of the debris under the circumstances that you described would be a very, very, unreliable conclusion as to point of impact—it would be very, very unreliable.”

Defendant Frisk objected to the testimony as irrelevant and immaterial because, at the time the question was asked

“* * * there has been no indication as to the angle these objects hit. I think that is relevant to this case for this reason,—to know the weight or the speed or metals involved or the details of damage, * * *.”

Defendant Moberly joined in the objection, and added the additional grounds that the answer would invade the province of the jury, and that

“* * * This is not a proper field for expert opinion under Oregon law; and for the further reason that in those states which do permit the rule is that before an opinion can be expressed, all of the variables must be eliminated down to the point of the actual facts of the particular case upon which the opinion is requested. None of those matters are in evidence here.”

The trial court ruled the evidence inadmissible because it was in the nature of accident reconstruction evidence.

We think the court. should have permitted Dr. Powell to answer the above question, but from a careful review of all the evidence we think the error was not prejudicial. We think the jurors were fully aware that moving objects have a tendency to continue in motion until their momentum has been expended. The location of the debris was described by the witnesses in general terms as being in the westbound lane. It must have been apparent to the jury that the point of impact could not be determined with any degree of accuracy from the location of a wide variety of debris scattered over a large area of the highway.

Dr. Powell was permitted to testify to the distance it would take an object to fall one foot and two feet while traveling at various rates of speed. He was examined and cross-examined extensively on this part of his testimony. Dr. Powell was, in effect, permitted to prove that moving debris would travel some distance before coming to rest on the roadway. He was only prevented from expressing his conclusion that the point of impact could not be accurately determined from the location of the debris. The jury might have been helped to some degree by Dr. Powell’s answer to the question to which an objection was sustained, but we think his answer would have had no effect on the jury’s resolution on the critical factual questions. We find no merit in this assignment of error.

The judgment of the trial court is affirmed.

The following discussion by Wigmore, involving a specific rule of evidence, is also appropriate here:

“Rulings upon this limitation should not in strictness be given the force of precedents. To argue from one case to another on this question of ‘time to devise or contrive’ is to trifle with principle and to cumber the records with unnecessary and unprofitable quibbles. There is a lamentable waste of time by Supreme Courts in here attempting either to create or to respect precedents. Instead of struggling weakly for the impossible, they should decisively insist that every case be treated upon its own circumstances. They should, if they are able, lift themselves sensibly to the even greater height of leaving the application of the principle absolutely to the determination of the trial Court. * * *” 6 Wigmore on Evidence (3d ed 1940) 154, § 1750.

(To the advice in the final sentence above, this court has replied “We are not able.” Bosin v. Oak Lodge San. Dist., 251 Or 554, 564, note 1, 447 P2d 285 (1968).)