Appeal from Circuit Court, Lane County. F. Gordon Cottrell, Judge. On appellant's petition for rehearing filed July 11, 1973. Former opinion filed June 21, 1973,
In Banc. O'Connell, C.J., dissenting. Tongue, J., also dissents.
ON PETITION FOR REHEARING
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 Espelund. 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 talked to the policeman telling him how this accident happened, whether you stated as follows:
"'I was westbound on Highway 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 car 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 you 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."*fn1
If Purdy's out-of-court statement to the police officer is admissible, there is evidence to show that
Purdy lost control of his vehicle because Espelund slowed suddenly, thus establishing Espelund's conduct as a ...