Summary
stating that "[w]hen a party testifies about a series of observations that express matters of opinion, judgment, estimate, inference or uncertain memory, as opposed to concrete facts peculiarly within the party’s own knowledge, the court should allow for the obvious possibility of mistake by allowing consideration of all available evidence"
Summary of this case from Luna v. LunaOpinion
92-2816-L-1(4); CA A83889
Argued and submitted November 7, 1994, affirmed January 25, 1995
Appeal from Circuit Court, Jackson County.
Ross G. Davis, Judge.
Hugh B. Collins argued the cause and filed the briefs for appellant.
Dennis H. Black argued the cause for respondent. With him on the brief was Black, Chapman, Webber Stevens.
LEESON, J.
Affirmed.
In this personal injury case, defendant Braun appeals from a judgment for plaintiff. She assigns error to the trial court's denial of her motion for a directed verdict. We consider the evidence in the light most favorable to plaintiff and, because we cannot say that there is no evidence to support the jury's verdict, we affirm. Or Const, Art VII (Amended), § 3; Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984); Sivers v. R F Capital Corp., 123 Or. App. 35, 37, 858 P.2d 895 (1993), rev den 318 Or. 351 (1994).
Plaintiff was a passenger in an automobile driven by her mother, defendant Braun. While traveling south on a two-lane rural road, they approached a pickup truck, driven by defendant Dennis Santos, that was traveling north. Santos stopped the truck to turn left into a driveway; its front bumper may have projected "a foot or so" into the southbound lane. Braun, reacting to what she perceived as danger from Santos' truck, skidded off the roadway onto the gravel, drove into a ditch and hit a tree. Both plaintiff and Braun were injured. Plaintiff brought an action for money damages, alleging that both Santos and Braun were negligent.
Charles Santos, the owner of the pickup, was originally named as defendant, but was dismissed before the trial began.
With respect to the issues in this appeal, plaintiff alleged in her pleadings that Braun was negligent in (1) failing to maintain proper control of her vehicle, (2) failing to keep a proper lookout, and (3) traveling at an excessive speed under the conditions. In direct contradiction to her pleadings, plaintiff testified at her deposition and at trial that Braun was not negligent in any manner and, in particular, that she "had full control," "was paying attention to the road and everything on it," and "was not driving [at an] excessive speed." Other witnesses gave conflicting testimony about Braun's alleged negligence. The jury returned a verdict finding that Braun was negligent and Santos was not. Judgment was entered in favor of plaintiff. Braun assigns error to the trial court's denial of her motion for a directed verdict.
Braun argues that, as a matter of public policy, plaintiff's testimony should be treated as a judicial admission and that other testimony on the issue of Braun's negligence therefore should be disregarded, thus precluding judgment against her. Her argument hinges on her characterization of plaintiff's testimony as direct evidence given in "fact terms as distinguished from her opinions."
When a party testifies about a series of observations that express matters of opinion, judgment, estimate, inference or uncertain memory, as opposed to concrete facts peculiarly within the party's own knowledge, the court should allow for the obvious possibility of mistake by allowing consideration of all available evidence. Bockman v. Mitchell Bros. Truck Lines, 213 Or. 88, 98-99, 320 P.2d 266 (1958); citing Valdin v. Holteen and Nordstrom, 199 Or. 134, 144, 260 P.2d 504 (1953); see also Osborne v. Bessonette/Medford Mtrs., 265 Or. 224, 231, 508 P.2d 185 (1973); Morey, Administratrix v. Redifer et al, 204 Or. 194, 214, 264 P.2d 418, 282 P.2d 1062 (1955). Although not stated in the equivocal language of opinion, plaintiff's statements are expressions of her judgment about matters connected with facts and are reasonably understood to be statements of opinion. Sellers v. Looper, 264 Or. 13, 16-17, 503 P.2d 692 (1972).
Testimony by other witnesses at trial casts doubt on plaintiff's deposition and trial testimony. For example, Clayton, a volunteer firefighter present at the accident scene, testified that plaintiff admitted that "she wasn't entirely certain what happened because she wasn't watching the road at the time [the accident] occurred, she was looking at [Braun] talking to her," and that Braun had frequently been looking back at her rather than at the road. Santos testified that Braun admitted that "her blood sugar was low and that she shouldn't have been driving and that she couldn't react [and] panicked" when she saw Santos's truck. A mechanical engineer who examined the skid marks at the accident scene testified that Braun had enough time to safely stop her car or "sufficient room" in her own lane to avoid Santos's truck. In the light of that testimony, we cannot say that there was no evidence to support the jury's verdict.
Affirmed.