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Tyrrell v. Marine Propulsion Services12/19/2001
ue all evidence and inferences therefrom in the light most favorable to the party who prevailed before the jury. This necessitates resolving any conflicts in the evidence in favor of that party.'" Daskalos v. Kell, 280 Or 531, 534-35, 571 P2d 141 (1977) (quoting Jacobs v. Tidewater Barge Lines, Inc., 277 Or 809, 562 P2d 545 (1977); accord Bruneau v. Curtis, 144 Or App 498, 500, 927 P2d 634 (1996).
Our inquiry, then, is not whether there is substantial evidence supporting the jury verdict, but whether there is any evidence supporting it. Daskalos, 280 Or at 536; Bruneau, 144 Or App at 500.
This case, as described above, involved a collision between a bicycle ridden by plaintiff and a pickup truck driven by defendant. Defendant's expert testified that, in his opinion, plaintiff bore more fault than defendant. That testimony came in over plaintiff's objection, but on appeal plaintiff does not cite its admission as error. Further, defendant presented competent (albeit disputed) evidence that he was not speeding at or immediately before the time of the collision; that plaintiff, before he began pedaling, had the opportunity to see defendant rounding the corner before defendant had the opportunity to see plaintiff; and that plaintiff had a better opportunity to avoid the collision than defendant. The trial court apparently believed that this testimony could not support a verdict for defendant because Oregon abolished the "last clear chance" doctrine by statute. ORS 18.475. Under that doctrine, " f a jury finds that the defendant had the 'last clear chance' to avoid injuring plaintiff, plaintiff can recover despite the fact that plaintiff was negligent and his negligence was a cause of his injury ." Walker v. Spokane, P'tl'd & Seattle Rlwy, 262 Or 606, 607, 500 P2d 1039 (1972). In abolishing the doctrine, however, the legislature simply established that a party does not automatically prevail by demonstrating that the other party had, and failed to take, the last opportunity to avoid a collision or other harmful event; it did not establish that evidence of who had the better opportunity to avoid an accident was inadmissible or otherwise incompetent in a comparative negligence case.
Some competent evidence, therefore, supported the jury's verdict. The trial court erred in granting plaintiff's motion for a new trial.
Reversed.
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