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Lane v. Brown12/3/1998
On review from the Court of Appeals.*
Argued and submitted January 14, 1997; reassigned
February 3, 1998, reassigned July 29, 1998.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
eley, J., retired January 31, 1998, and did not participate in this decision; Graber, J., resigned March 31, 1998, and did not participate in this decision.
In this personal injury action arising out of an automobile accident, the issue involves whether the trial court properly gave the so-called "emergency" instruction to the jury. The trial court gave the instruction over plaintiffs' objection, and the jury returned a verdict in defendant's favor. Plaintiffs appealed to the Court of Appeals, arguing that the evidence did not establish an "emergency" that would support giving the instruction. The Court of Appeals disagreed and held that the trial court did not err in giving the instruction. Lane v. Brown, 138 Or App 34, 906 P2d 821 (1995). Plaintiffs petition for review on two principal grounds: First, they argue that the emergency instruction was redundant and confusing to the jurors and, for that reason, giving the instruction was legal error. In the same vein, plaintiffs also contend more generally that the emergency instruction is redundant and confusing to jurors in every case, and that this court should forbid its use in Oregon. Second, they argue that the evidence in the present case did not justify giving the emergency instruction here.
We allowed review primarily to consider plaintiffs' first argument, including the continuing validity of the instruction. On close review of the record, however, we have determined that that issue was not preserved below and, therefore, it is not properly before this court. With respect to the remaining issue -- the sufficiency of the evidence -- we affirm the decision of the Court of Appeals.
The facts of the case were summarized adequately by the Court of Appeals, and we repeat that summary here.
"On November 15, 1991, defendant was driving west on Highway 26 near Mount Hood. Defendant had driven approximately 200 miles before the accident. The weather was clear, visibility was good, and the roads were dry. The tires on defendant's pickup were almost new, studded snow tires. He had the pickup in 2-wheel drive, because the owner's manual recommended against driving the pickup in 4-wheel drive on dry pavement.
"Defendant's speed did not exceed 50 miles per hour, in a 55-mile-per-hour zone. As defendant approached a place where the road curved to the right, he slowed to 45 miles per hour. He explained that, on a prior occasion, his brother had hit a deer, and he was especially watchful in wooded areas in case a deer ran out onto the road. Suddenly, the rear of defendant's pickup skidded to the right. Defendant tried to correct the skid by letting up on the accelerator, turning the steering wheel in the direction of the skid and keeping his foot off the brake pedal. Defendant was unable to regain control of the pickup. It shot to the left, slid across the highway and collided with plaintiffs' car.
"An eyewitness, who had been driving behind defendant, stopped his pickup and placed flares in the road to warn other motorists of the accident. He testified that the road was slick and icy in the spot where defendant's pickup began skidding. He stated that the road had been dry and clear up to that point. An ambulance driver who drove to the accident testified that he had approached the scene from the east, the same direction from which defendant had been driving, and that he had encountered no adverse road conditions in the 15
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