finding that a trial court correctly instructed a jury on negligence, including instructions that “conduct is not to be judged in light of hindsight”
How later courts described this case
- finding that a trial court correctly instructed a jury on negligence, including instructions that “conduct is not to be judged in light of hindsight”
- defendant's safety manual excluded on facts of case
Written by the judges who cited it.
The opinion
O’CONNELL, C. J.,
dissenting.
I would grant the petition for rehearing. There is a basis for finding that the trial court erred in granting an involuntary nonsuit in favor of defendant Espelnnd. There was substantial evidence from which a jury could have concluded that Espelund’s conduct was a contributing cause of the accident. During Purdy’s cross-examination, the following occurred:
“Q. I want to ask you whether when you tallied to the policeman telling him how this accident happened, whether you stated as follows:
“ ‘I was westboxmd on Plighway 58 at approximately 50 to 55 miles an hour. Suddenly the unit in front of me slowed because of a truck that was tipped over on its side in the shoulder of the highway. The ear in front of me applied its brakes, but I lost control. No, let’s see, I applied my brakes, but lost control. I slid across the center line and into the eastbound land hitting the eastbound car.’
“Q. Do yon remember of saying that to the officer?
“A. If it is written there, I probably did, but in my condition, then I can’t * * * I couldn’t think straight anyway.” ①
If Purdy’s out-of-court statement to the police officer is admissible, there is evidence to show that *536 Purdy lost control of his vehicle because Espelund slowed suddenly, thus establishing Espelund’s conduct as a contributing cause of the accident.
The majority apparently have decided that the statement is inadmissible on the ground that it is hearsay. I am unable to understand why an out-of-court statement made by a person who is now a witness and therefore is subject to cross-examination concerning the statement should not be admissible. Those who have made the most careful study of the law of evidence, including Wigmore, McCormick, the drafters of the Uniform Code of Evidence, the drafters of the Model Code of Evidence, and others, share my view. ②
Purdy’s out-of-court statement was not consistent with his statement on the stand. The jury should be permitted to decide which of these statements is the more credible and rely on it in reaching a decision.
If my position is not in accord with our previous holdings, I would simply say that it is time to overrule them. ③ It has been argued that Purdy’s uncertainty as to whether he made the out-of-court statement renders it too insubstantial to consider. The answer to that argument is that the weight of evidence has always been a question for the jury.
The petition for rehearing should be granted. Tongue, J., also dissents.
During the testimony of the police officer in whose report the statement appeared, the statement was objected: to and. excluded as to defendant Espelund. When the statement was again read during Purdy’s testimony, no objection was made.
See 3A Wigmore on Evidence 996 (Chadboume rev. 1970); McCormick on Evidence, 601-604 (Cleary rev. 1972); 9A ULA Rules of Evidence, Rule 63 (1) (1965 draft); ALI Model Code of Evidence, Rule 503 (b) (1942). See also, DiCarlo v. United States, 6 F2d 364 (2nd Cir 1925) (L. Hand, J.).
Cf., Madron v. Thomson, 245 Or 513 , 419 P2d 611 , 423 P2d 496 (1966); McKinnon v. Chenoweth, 176 Or 74 , 155 P2d 944 (1945).