# Beglau v. Albertus > Oregon Supreme Court · June 12, 1975 · 272 Or. 170 URL: https://www.frixlaw.com/law-library/cases/9531288 ## Case - **Full name:** BEGLAU, Respondent, v. ALBERTUS, Appellant - **Court:** Oregon Supreme Court - **Decided:** June 12, 1975 - **Citations:** 272 Or. 170; 536 P.2d 1251; 1975 Ore. LEXIS 416 - **Precedential status:** Published - **Opinion:** Dissent by O'Connell - **Judges:** Tongue, O'Connell, Bryson - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9531288 ## How later opinions describe it (automated extraction) - stating that “[i]t is fundamental that a new trial may be ordered by a trial court only for prejudicial error” (emphasis added) and that that “has been the rule since 1910 when Art VII, § 3, was added to the Constitution” ## Opinion text O’CONNELL, C. J., dissenting. I cannot agree with the majority’s conclusion that the failure to give an improperly requested instruction constituted error sufficiently prejudicial to sustain the order for a new trial. The jury was instructed as follows: “Now in this case the Plaintiff has alleged that the *189 Defendant was negligent in failing to illuminate his tractor. The operator of equipment such as the tractor being operated by this Defendant has a duty only to illuminate his vehicle as a reasonable person would in the same or similar circumstances. That should be as a reasonably prudent person would in the same or similar circumstances. “In determining this question you should take into consideration the extent or degree of danger reasonably to be expected under the circumstances of light and visibility you find prevailed at the time of the collision.” Thus, the jury was alerted to the safety promotion function of the statute but not its technical details. However, the precision of the statutory requirement is entirely irrelevant to the facts of this case because defendant admitted he had no functioning lights, at all. ① I can see no logical basis on which a jury might find a failure of one who does not light his vehicle at all when a prudent man would do so is more culpable because a statute also requires him to do what is prudent. This view is supported by Barnum v. Williams, 264 Or 71 , 504 P2d 122 (1972), in which we abolished the. doctrine of negligence per se and adopted in its stead the rule that violation of a safety statute creates a rebuttable presumption of negligence. This demonstrates that the statute does not, in itself, impose a civil standard of conduct but serves, instead, as a persuasive indication of community norms. Thus, an instruction in the form of common law duty which, though less detailed, is as extensive as that imposed by the legislature certainly should be sufficient to apprise the jury of the social norm which it is called upon *190 to apply to the facts of the case. I see no error sufficiently prejudicial to justify retrial. I differ from the majority additionally in that I would overrule Correia v. Bennett and Johnson, 199 Or 374 , 261 P2d 851 (1953) and those cases following it ② and hold that a new trial may be granted only when the requisites of OES 17.610 or OES 17.630 are satisfied. It is my opinion that there is no excuse for this court to ignore the clear mandate of the legislature that new trials should not be granted for errors of law unless proper exceptions have been taken or the trial court chooses to correct error upon its own authority within the thirty days allowed by statute. Fairness to those who may have relied upon our prior decisions in failing to act with the alacrity required by OES 17.630 may be preserved by restricting the effect of the ruling to cases which have gone to judgment subsequent to this decision. I would reverse the order granting a new trial and reinstate the judgment based upon the jury’s verdict. Bryson, J., joins in this dissent. The difference between a more general common law instruction and the language of a necessarily detailed regulatory statute might be significant if the negligence alleged was failure to satisfy the duty completely. When, as here, the negligence is utter failure to comply, the details are irrelevant. Lee v. Caldwell, 229 Or 174 , 366 P2d 913 (1961); Hillman v. North. Wasco PUD, 213 Or 264 , 323 P2d 664 (1958), and Lundquist v. Irvine, 243 Or 274 , 413 P2d 416 (1966) would be overruled along with Correia . The other cases cited by the majority as following Correia do so in dicta at most. In Stein v. Handy, 212 Or 225 , 319 P2d 935 (1957) the new trial was ordered on the court’s own motion two days after entry of judgment. Similarly, the new trial was ordered in Hays v. Herman, 213 Or 140 , 322 P2d 119 , 69 ALR2d 947 (1958) on the court’s own motion less than thirty days after entry of judgment, even though a party had also moved the court to grant a new trial. In Strandholm v. General Construction Co., 235 Or 145 , 382 P2d 843 (1963) the ground for the new trial was party misconduct (ORS 17.610(2) rather than (7)) which does not require an exception as a prerequisite. In Young v. Crown Zellerbach, 244 Or 251 , 417 P2d 394 (1966) the trial court instructed the jury in the absence of counsel and then announced that a new trial would be ordered if either party moved for one. Finally, Fleet v. May Department Stores, Inc., 262 Or 592 , 500 P2d 1054 (1972) holds with complete accuracy that a trial court may order a new trial upon its own motion for errors of law not excepted to. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9531288. Public record. Not legal advice.