Pointer v. Klamath Falls

Supreme Court of Oregon · Evidence

Evidenceevidenceexpert testimonyopinion testimonyultimate issuenegligencecontributory negligencecustomary practice

Facts

Defendant constructed a street railway in Klamath Falls, and plaintiff was injured when, while driving a wagon heavily loaded with lumber and making a turn, he struck a rail projecting above the street and was thrown from the wagon. Plaintiff alleged the injury resulted from defendant's negligence in leaving the rails projecting above the surface even though the franchise ordinance required the rails to be maintained flush with the pavement. Defendant asserted contributory negligence and emphasized that plaintiff had been standing on the load rather than sitting while driving. At trial, plaintiff's witnesses were allowed, over objection, to answer questions asking whether standing on the load while driving four horses up an incline and making a turn was careless, reckless, or negligent, and they answered no.

Issue

Whether, in a negligence case, witnesses experienced as drivers may testify not only about the proper and customary position for driving under the circumstances, but also directly opine that the plaintiff's conduct was not careless, reckless, or negligent.

Rule

Where negligence, recklessness, or carelessness is the ultimate fact for the jury to decide, an expert witness may not express an opinion on that ultimate fact. Such a witness may testify only to the usual and customary method of doing the act and, from experience, the dangers attendant on doing it in the manner described.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Rosa Medina sued Cascade Street Works after her delivery van jolted when a steel access cover sat above the roadway surface. Cascade claimed Rosa was contributorily negligent because she was steering with one hand while reaching for a route sheet. At trial, Rosa called a longtime commercial-driving instructor, who was asked, "Was Rosa negligent in driving that way at that moment?"

If Cascade objects, how should the court rule?

Explanation. Where negligence, recklessness, or carelessness is the ultimate fact for the jury, an expert or skilled witness may not opine directly that conduct was negligent or not negligent. The witness may assist by describing customary methods or attendant dangers, but may not resolve the jury's ultimate issue.