Appeal from Circuit Court, Douglas County. Don H. Sanders, Judge.
John J. Haugh, of O'Connell, Goyak, Haugh & Loew, Portland, argued the cause for appellant. With him on the briefs was Burl L. Green of Green, Richardson, Griswold & Murphy.
Paul D. Clayton, of Luvaas, Cobb, Richards & Fraser, Eugene, argued the cause and filed a brief for respondent Frisk.
Paul E. Geddes, of Geddes, Walton & Richmond, Roseburg, argued the cause and filed a brief for respondent Moberly.
In Banc. McAllister, J. Tongue, J., dissenting. O'Connell, C.J., joins in this dissent.
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 hit their car, but 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 cars 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 was 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 within 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, however, 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 law to his decision and he is not free of revision or review. In the case at bar, it was not singularly a matter of discretion, but a question of law calling for an application of a rule of law to a particular set of facts. The true meaning of 'discretion,' when applied to the exclusion or admission of testimony from an expert witness, 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.*fn1 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 uncontradicted 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 ...