Gunn v. Hi-C-Home, Inc. ( 1971 )

O’CONNELL, C. J.,

dissenting.

As we observed in Stewart v. Jefferson Plywood Company, 255 Or 603, 469 P2d 783, 785 (1970), the courts “have inherited the duty to exercise control over the jury and to keep it within the bounds set for it, vague as they may be.”

In exercising that control the court must make a preliminary judgment as to whether the jury could reasonably find that an injury was foreseeable. “Implicit in this process” we said, “is the assumption that judges as well as juries know something about the kind of conduct that is deemed acceptable or not acceptable in the community * *

In the present case the trial judge was the trier of fact. I do not think that it was reasonable fox; him or for a jury to conclude that the injury was foreseeable. There is nothing about fountains in general which would suggest to a reasonable man that it would produce a startling noise. Nor is there any evidence that defendant’s servants knew or had reason to know'that the fountain in the present case would produce such a noise.

Accepting the evidence of plaintiff’s witness, as incredible as it seems, that the fountain made a .noise equivalent to that of an airplane flying 50 feet above the ground, the evidence would prove only what someone heard after the fact — it does not prove that defendant’s servants knew, or had reason to know, or should have known that the fountain would make a startling sound.

The judgment should be reversed.