# Fenton v. Aleshire

> Oregon Supreme Court · June 17, 1964 · 238 Or. 24

URL: https://www.frixlaw.com/law-library/cases/9558168

## Case

- **Full name:** FENTON v. ALESHIRE Et Al.
- **Court:** Oregon Supreme Court
- **Decided:** June 17, 1964
- **Citations:** 238 Or. 24; 393 P.2d 217; 1964 Ore. LEXIS 415
- **Precedential status:** Published
- **Opinion:** Dissent by Rossman
- **Judges:** McAllister, Rossman, Sloan, Goodwin, Lusk
- **Cited by:** 47 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/9558168

## How later opinions describe it (automated extraction)

- explaining that “the defendant under a general denial may show any circumstance which militates against his negligence or its causal effect,” including circumstances giving rise to an unavoidable or inevitable accident not caused by negligence (internal quotation marks omitted)
- noting several cases holding refusal to give instruction not reversible error because instruction is merely “clumsier” manner of instructing jury on principles of negligence

## Opinion text

ROSSMAN, J.,
dissenting in part and concurring in part.
I dissent from the part of the decision which withdraws from the trial judge’s vocabulary, in instructing a jury, the term “unavoidable accident.” When the layman upon the street uses that term, he fully understands its meaning. The decision obviously leaves all people, including lawyers, free to use the term “unavoidable accident.” Only the trial judge is forbidden the use of the term.
Of all work which the legal profession performs, instructing the. jury is very likely the poorest that we turn out. Denying the trial judge the right to use the words “unavoidable accident” will not improve the instructions. The majority suggests no term of equal clarity for the trial judge to use in lieu of “unavoidable accident.” In fact, they suggest that when the trial judge has told the jury that the plaintiff is not entitled to a verdict unless he establishes negligence, *38 he need say nothing more. But the trial judge is in a far better position than we are to know whether he should say something more. If some trial judge in the future momentarily forgets the holding of the majority in this case and uses the term “unavoidable accident,” a basis for appeal will be created or an additional assignment of error will find its way into the appellant’s brief.
Apparently, the basis of the majority’s opinion is that the term “unavoidable accident” is a bias expression, that is, it inclines the minds of the jurors one way or the other. If we are now going to begin to limit the language of the instructions, someone will undoubtedly next tackle the term “an act of God.” “Unavoidable accident” and “an act of God” frequently have the same meaning. When we have left to the trial judge nothing but insipid words, the instructions will be of that character. Or, if the trial judge can use nothing but legalistic terms, the instructions will mean even less to the jury than they now do.
The term “unavoidable accident” is one which every juror understands. Terms of that kind rather than words selected from the law dictionaries should be employed in the instructions. The jury must catch “on the fly” the meaning of the instructions. It will grasp their significance much more readily if terms such as “unavoidable accident” are employed than if the trial judge speaks of accidents in which neither party was guilty of negligence.
Although I dissent from the foregoing part of the decision, I concur in all other parts, including the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9558168. Public record. Not legal advice.