# Rader v. Gibbons and Reed Company > Oregon Supreme Court · March 9, 1972 · 261 Or. 354 URL: https://www.frixlaw.com/law-library/cases/9536964 ## Case - **Full name:** RADER, Respondent, v. GIBBONS AND REED COMPANY, Appellant - **Court:** Oregon Supreme Court - **Decided:** March 9, 1972 - **Citations:** 261 Or. 354; 494 P.2d 412; 1972 Ore. LEXIS 308 - **Precedential status:** Published - **Opinion:** Dissent by O'Connell - **Judges:** O'Connell, McAllister, Holman, Howell, Bryson - **Cited by:** 22 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/9536964 ## Opinion text O’CONNELL, C. J., dissenting. The majority opinion justifies the rejection of McReary’s testimony on the ground that he was not qualified as an expert witness since he did not testify that he had ever examined rocks which had been picked up between dual tires or that he had any special competence in determining from a rock’s appearance whether it had in fact been between dual tires. However, plaintiff’s counsel did not object to the evidence, nor did the trial court exclude it, on that ground. The trial court gave no indication whether it regarded McReary as sufficiently expert to testify that in his opinion the rock in question had been between dual tires; however, the record contains substantial evidence as to McReary’s general expertise on highway safety and engineering, and McReary testified that he knew from professional experience of rocks being *368 picked up between dual tires. There may be cases in which a question is so obviously beyond the scope of a witness’ expertise that we would hold that the trial court would abuse its discretion if the witness were permitted to testify, even absent an objection from the opposing party. The majority apparently believe this to be such a case. I disagree. A witness is not disqualified as an expert simply because he has not previously observed the specific cause and effect relationship sought to be shown in the case in which he is a witness. He is entitled to draw upon the broader principles which form the foundation for his expertise and reason from those principles to explain the specific cause and effect connection in the specific case. That was what McReary purported to do in the present case. As an alternative ground for excluding the evidence, the majority opinion holds that the form of the hypothetical question was improper in that it failed to state that the witness’ opinion was based on the assumption that Strike’s truck passed the Rader car at the crucial time and that Strike heard a loud noise as he passed the car. I am unable to understand why that assumption is a necessary part of the hypothetical question. It was McReary’s conclusion that the rock was on a rising trajectory as it entered the car, having been thrown from between dual tires of a passing truck. This conclusion could be reached reasonably without a consideration of Strike’s testimony relating to the noise he heard as he passed the Rader car. But assuming the hypothetical was defective in form, it was not excluded by the trial court for that reason. The trial court said: “THE COURT: Now, I am not going to let this *369 witness testify an opinion as to how this rock could have gotten thrown at the windshield of this car. * * * This is the same proposition as having someone go out and investigate an automobile accident and tell us how it happened. They haven’t permitted that in this state yet.” Thus it is apparent that the evidence was excluded on a ground that had nothing to do with the form of the question. It appears that the trial court felt that the witness was invading the province of the jury in drawing his conclusion as to the manner in which the accident occurred. Although the jury did not have to accept this opinion, it would have been helpful if accepted. Consequently, I think that the trial court’s reason for excluding it was erroneous. Therefore I would reverse and remand for a new trial. In his concurring opinion Mr. Justice Holman takes the position that even if the trial court erred in not permitting McReary to testify, the court’s action was not sufficiently prejudicial to constitute reversible error. I disagree. It must be borne in mind that the rock which penetrated the windshield of decedent’s car was very large and heavy, with dimensions of approximately nine inches in length and four and one-half to five inches in width. Unless someone with scientific knowledge explained to a juror that it was possible for a rock of that size to be picked up and thrown through a windshield, it is likely that the jury would not believe that it could happen. It is to be noted that the testimony explaining that “the rock was on a rising trajectory when it entered the vehicle,” left unexplained, was equally consistent with the theory that the rock came from the haul road above and bounced from the pavement into the windshield. The expert *370 witness should have been permitted to explain that in his opinion the rock was thrown by the truck tires and did not rise from the ground in some other way. I question the statement in footnote three of the majority opinion, that “where the ruling of the trial judge is correct on any ground it will be upheld, even though his reasons for the ruling may have been erroneous.” That rule is applicable where a judgment is rendered on an incorrect ground but there is a correct ground which will sustain it. However, the principle is different where the court rules on the admissibility of evidence. In the latter case if a specific objection is made and sustained on an improper ground, the exclusion will not be upheld on appeal if it appears that had the proper ground been given the proponent of the evidence could have obviated the objection. ① Larson v. Dougherty, 72 S D 43, 29 NW2d 383, 384 (1947); Colburn v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 109 Wis 377, 85 NW 354, 355 (1901); McCormick, The Law of Evidence, p. 118 (1954). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9536964. Public record. Not legal advice.