Allison v. Davidson , 173 Or. 244 ( 1943 )

The opinion of the majority fairly states the evidence upon which the conclusion of the court rests. It need not be repeated. There is, however, some additional and undisputed evidence to which attention will later be directed. I agree with the majority that there was no reversible error in the instructions. Whether there was sufficient to take the case to the jury is the only serious question before the court. No exception is taken to the general rules which this court has established for the determination of the sufficiency of the evidence when tested by a motion for a nonsuit or directed verdict. It is only in the application of those rules that I have the misfortune to disagree with the majority. I concede that the case lies close to the border line and suspect that it is so considered by other members of the court.

Before discussing the sufficiency of the evidence, it may be appropriate to comment upon the nature of the question and the considerations which must serve to guide us in arriving at a conclusion. We have held that if different reasonable inferences may be drawn by reasonable men even from undisputed evidence, the question is one of fact for the jury (Larkins v. Utah CopperCo., 169 Or. 499, 127 P.2d 354) but that

"Evidence free from dispute, and from which no conflicting inferences can be drawn, presents no issue for the jury * * *. If the only thing that will avail a party is a guess or an inference which is not predicated upon any fact, he cannot succeed." Inwall v. Transpacific Lumber Co., 165 Or. 560, at p. 573, 108 P.2d 522.

What is the test by which we shall determine the extent of the inferences which may be made by the "reasonable man"? It has often been urged, although not in this case, that the jurors, who are presumed to be reasonable men, having found for the plaintiff, it necessarily follows that reasonable men could draw the inference which was drawn. The same argument has been applied when a difference of opinion is found to exist among the judges of an appellate court. Assume, for example, that the situation which appears in this case were reversed, and the majority were of the opinion that there was no substantial evidence to support the verdict, while a minority believed that a jury question was involved. Could it be argued that the majority has a duty to yield to the minority because of the fact that a difference of opinion among the judges establishes that reasonable minds may differ and that therefore the cause was properly submitted to the jury? The concept of the "reasonable man" is an abstraction created by the law, and the legal sufficiency of the evidence is a question of law for the court. 64 C.J. 301. Where the inferences deducible from the testimony are so opposed to all reasonable probability as to be manifestly false, the court will rule as a matter of law that the evidence is insufficient to go to the jury. 64 C.J. 303. Under democratic institutions, the determination of such questions must be made by the majority, notwithstanding the disagreement of a minority. I accept this doctrine and yield gladly to the opinion of the majority but cannot agree with the argumentum ad hominem by which it would be urged that the mere fact of the finding of the jury or a division of the court establishes that a jury question was involved in the case.

The evidence which is relied upon as supporting the verdict consists of two kinds: First, that which establishes the happening of the accident, and, second, opinion evidence to the effect that the conduct of the defendants was negligent. Obviously, the happening of the accident alone is not sufficient to support the verdict. The verdict, if supportable, must rest upon the opinion evidence. There is no evidence that the defendants "placed the plaintiff in a position of great danger." There is evidence that the defendants' mechanic pointed to the front portion of the motor or to the water pump back of the fan and said, "Just look down there." The plaintiff voluntarily took the position in which he was injured. The rule concerning defendants' duty to business visitors is set forth in 2 Restatement of the Law of Torts, § 343, the pertinent provisions of which may be summarized as follows: He would be liable if, but only if, he knows or by the exercise of reasonable care could discover the condition which, if known to him, he should realize as involving an unreasonable risk to the plaintiff, and he invites or permits plaintiff to enter or remain in the place without exercising reasonable care to make the condition reasonably safe or to warn the plaintiff. I think there is an absence of any substantial evidence satisfying the foregoing rule. Assuming that the mechanic knew the exact location in which plaintiff had placed himself, the facts are that while the plaintiff was leaning over the motor in order to observe the cause of the trouble, the defendants accelerated the engine, the fan broke and the plaintiff was injured. No warning having been given, the single question is whether there was substantial evidence from which the jury could find that the defendants knew or by the exercise of reasonable care should have discovered the condition which, if known to them, they should have realized as involving an unreasonable risk to the plaintiff. There is some evidence to the effect that metal subjected to strain tends to crystallize, but there is no evidence that any crystallizing had taken place in the fan or its mechanism.

I find no testimony that it is standard practice for mechanics to exclude owners of cars or to warn them to keep away when the motor is accelerated. On the contrary, the evidence discloses, and it is common knowledge, that the owner frequently desires and is permitted to look on and see for himself the source of the trouble. It is common knowledge, which we must judicially know, that daily and throughout the country such an operation is performed an immense although incalculable number of times. Examination of the testimony of plaintiff's two experts, Smith and Lietz, as quoted by the majority, discloses that the questions which were propounded to them contained no description of the age or condition of the particular car or of any car but inquired generally if it would be in the exercise of reasonable care to race the engine when the customer was "in proximity to" or "in front of" the fan with the hood up. As to that broad question both witnesses made statements applicable alike to new cars and old that such an act would not constitute due care. In view of our common knowledge such broad testimony strains credulity to the breaking point. Witness Smith was asked to assume that the motor was "highly accelerated." I find no evidence that the motor was highly accelerated. It appears that the fan was accelerated to a point about equivalent to a thirty mile an hour road speed. I think a fair summary of the evidence for the plaintiff would be to say that the witnesses recognized that fans can break and have sometimes broken, that all moving machinery is dangerous in that it can break and may injure, and therefore that the fan was dangerous when the motor was accelerated. There was no attempt to show the probability of breakage by a comparison of the number of times the operation has been performed without breakage. I concede that it would be impossible to secure such data, but the fact remains that proof of negligence depends not upon showing that there was risk but rather that there was an unreasonable risk. While the witnesses said that the process was dangerous, they did not say that the injury was probable and clearly indicated that it was not. We must judicially know that the occasions upon which a fan has broken in or out of the shop and with hood up or down must represent a minute fraction of one percent of the times that the engine has been accelerated or "raced." Even if we should assume that the witnesses limited their testimony to the acceleration of an engine in an old car (which is not the fact) their testimony would extend merely to the proposition that it is dangerous to accelerate the motor of any old car when the hood is up and when any person is in a position where he could be struck by any portion of the fan if it should break. There is a conspicuous absence of evidence of personal knowledge by the witnesses of specific facts upon which to base their broad statements of opinion. The personal experience of witness Smith was apparently limited to the breakage of one fan when the hood was down. He had apparently heard of some other instances. Witness Lietz, with twenty-five years of experience as an automobile mechanic, in answer to the question whether fans ever fly apart, said he had "heard of them doing that", that it was "infrequent" and that we "don't expect it." So far as the evidence discloses, with the sole exception above noted, none of the automobile mechanics who testified in all their years of experience had ever witnessed the breaking of a fan.

In considering whether the record discloses substantial evidence of negligence, I think we may properly consider the nature of opinion evidence, especially when it is of the kind which has been described as "invading the province of the jury." A jury is ordinarily bound by the undisputed direct evidence on an issue of fact, but we have recognized a distinction as to opinion evidence by holding that even if opinion evidence as to value stands alone, still the jury is not always bound by it.Paine v. Meier Frank Co., 146 Or. 40, 27 P.2d 315,29 P.2d 531; Littlepage v. Security Savings Trust Co., 137 Or. 559, 3 P.2d 752. True, such evidence is admissible as advisory, but it is not necessarily substantial. The modern view is decidedly in favor of relaxing the old and strict exclusionary rules concerning opinion evidence, but if such relaxation is countenanced an additional burden is placed upon courts to consider the substantiality of evidence of this type. Plaintiff's witnesses expressed direct opinions on the very issue submitted to the jury, namely, the negligence vel non of the defendant. Such evidence has been held inadmissible by this court as an invasion of the province of the jury. Lehman v. Knott, 100 Or. 59,196 P. 476. However, I place no reliance on that rule. The evidence was received without objection, and the rule itself has received merited criticism. See Wigmore on Evidence (3rd Ed.) and cases cited in the note to section 1951, pages 68 et seq. The admission of such evidence should not be deemed reversible error, but, being received, it should be the subject of judicial examination.

The foregoing considerations cast grave doubt on the sufficiency of the evidence, but the most serious aspects of plaintiff's case remain to be considered. The plaintiff brought his car to defendants' garage for repairs because it was knocking, popping and smoking. The undisputed evidence disclosed that the pistons were loose, with the result that there was a "blow by", and upon acceleration of the motor smoke poured from the breather pipe. There was no suggestion by the plaintiff or by anyone else that there was any defect in the fan or its mechanism. The defendants' mechanic discovered the cause of plaintiff's trouble and pointed it out to the plaintiff. If plaintiff had brought the car for repairs to the very mechanical part which broke and caused the injury (namely, the fan) a different situation would have arisen, but in fact the disrepair of which plaintiff complained and which resulted in the knocking and smoking was not shown to have involved any danger to anyone. The defendants were not asked, nor did they ever assume, to inspect or repair the fan. The undisputed evidence from a number of witnesses conclusively discloses that there was an old break in the fan which was "approximately three-quarters of the way, somewhere in there, all old break." It seems to me undeniable that this was the circumstance which produced the injury when the motor was accelerated. There is not a word of evidence to indicate the existence of any other defect or that the defendants' mechanic knew or should have known of the old break in the fan, unless we say that he was chargeable with knowledge of that particular condition merely because he had knowledge concerning the general age and appearance of the car. I think he could not be so charged.

A final circumstance seems to me to establish conclusively that a nonsuit should have been granted. The undisputed evidence shows that while the car was in the shop and not in gear, the defendants' mechanic twice caused the motor to be accelerated immediately preceding the third acceleration when the fan broke. Upon the first two occasions there was no harmful result. It apparently functioned normally. Those facts are certainly sufficient to raise an inference that the operation might be performed without danger three times as well as two. None of the plaintiff's experts were informed of this fact, and none testified that the acceleration of the motor would be dangerous on a third occasion when it had been demonstrated harmless on two immediately preceding occasions. If the witnesses were to be permitted to express their broad opinion as to the dangerous character of the operation, I think they should have been informed concerning the preceding experiments performed by the defendants as material circumstances bearing upon the likelihood of injury in the event of a repetition of the same procedure. What opinion might have been expressed if the foregoing facts had been submitted to the witnesses, we cannot know.

We have properly held that it is the privilege of counsel to assume any state of facts which there is any testimony tending to prove and to have the opinion of the expert based on the facts assumed (Lehman v. Knott, supra), but there is a necessary corollary to this rule. When a hypothetical question is based upon facts in the record, as in this case, but does not include all the material facts in the record, as in this case, the answer of the witness, in and of itself, at most should not be deemed to be substantial evidence relevant to any state of facts other than those set forth in the question. If the hypothetical question sets forth only a partial statement of the material facts, the answer to the partial question, if supplemented by other testimony on the remaining material facts, may be of substantial value, but where the witness is asked a partial question and is then asked to give a general answer upon the very issue which is to be submitted to the jury, namely, the negligence of the defendant, the witness' answer should be deemed relevant only to the partial state of facts presented in the question. The answer does not necessarily constitute substantial evidence that the defendant was negligent if the undisputed evidence discloses material facts which were not included in the question. It follows that even if the answers of the experts in the case at bar were entitled to weight, so far as the questions put to them were concerned, they were entitled to no weight upon the ultimate question of negligence of the defendants, because the questions put did not include material and relevant facts established by uncontradicted evidence which at least tended to indicate that the defendants were not negligent.

The opinion evidence was insufficiently tied to the facts of the specific case and amounts to nothing more than expressions based upon insufficient experience and insufficient data.

"Necessarily the weight of the opinion of an expert depends largely upon the facts on which it is based. If supported by the evidence and by reason and common sense it may carry great weight. If it is not justified by evidence or by reason it is entitled to no weight." United States v. Hill, 62 F.2d 1022.

Under all the circumstances, and with due respect to the views of the majority, I think that the opinions of the experts did not rise to the dignity of substantial evidence of negligence and that a nonsuit should have been granted.