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Lane v. Brown12/3/1998
into the skid and take his foot off the brake. Lane, 138 Or App at 38. Defendant clearly had alternatives, as plaintiffs' own expert conceded at trial. The fact that defendant testified that there was nothing that he could have done to avoid the crash does not alter the fact that the jury was entitled to infer that defendant made a choice among available alternative courses of action. See Durnford v. Worden, 242 Or 536, 539-40, 410 P2d 1020 (1966) (where alternatives actually were available to plaintiff at time of accident, trial court did not err in granting new trial to plaintiff for failure to give plaintiff's requested emergency instruction, even where plaintiff denied that he made a conscious choice).
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
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