Roehr v. Bean , 237 Or. 599 ( 1964 )

SLOAN, J.,

dissenting.

The real problem presented by this ease is to determine if the inferences to be drawn from the factual evidence were so “tenuous” that a jury should not be permitted to make them. Eitel v. Times, Inc., 1960, 221 Or 585, 352 P2d 485. And do the permissive inferences indicate the state of mind defined in Williamson v. McKenna, 1960, 223 Or 366, 354 P2d 56.

I think the factual evidence does create permissible inferences that Rutherford’s conduct involved a high degree of probability that harm could result and that he could well have known that he was courting disaster. Williamson v. McKenna, supra.

I will not attempt to mention all of the possible inferences. It does appear that the speed at which the car was being driven in Tillamook in violation of a traffic light; the lack of other traffic of any kind and the extreme speed at which the Tillamook police officer followed Rutherford could have caused the latter to believe he was being pursued by a police officer, even though there was not, of course, any direct evidence to that effect.

It could also be inferred that under all of the circumstances Rutherford must have been aware that he was driving so fast that he could not control the car if he encountered an impediment in the highway such as the “jingle” bars at the curve. The jury could have inferred that the rate of speed was so great that effective control of the car was not possible. In a case quite similar, as to this aspect of the situation here, Justice Belt, for the court, stated: “The skid marks and course of the car plainly speak of excessive speed and loss of control of the car.” Cowgill, Adm’r v. Boock, Adm’r, 1950, 189 Or 282, 290, 218 P2d 445, 449. This case was properly submitted to the jury.

. Chief Justice McAllister and Justice O’Connell join in this dissent.