ON REHEARING
Richard C. Bemis, Portland, argued the cause for appellant. With him on the briefs were Seitz, Whipple, Bemis & Breathouwer, Portland. James K. Buell, Portland, argued the cause for respondent. With him on the briefs were David,'N. Hobson and Phillips, Coughlin, Buell & Phillips, Portland. Before Perry, Chief Justice, and McAllister, Sloan, O’Connell, Goodwin, Denecke and Holman, Justices. PER CURIAM.On rehearing, plaintiff challenged the jurisdiction of this court to consider the question upon which we reversed the judgment below. Reconsidering the matter, we conclude that the question was not properly before the court and that the opinion should be withdrawn and the judgment affirmed.
The alleged error upon which we reversed the judgment was an instruction that the defendant was negligent as a matter of law and that such negligence was a proximate cause of the accident. A majority of the department hearing the appeal was of the opinion that there was a jury question on the issue of causation, and we reversed.
We considered the assignment of error even though no exception to the instruction appeared in the record. We did so because of the ambiguity in the plaintiff’s *499request for the instruction. We quote from the transcript :
“* * * Our next motion, your honor, is to instruct the jury * * * [in the terms mentioned above].
“The Court: That instruction will be given.”
Under ORS 17.510 it is not necessary to note an exception to a ruling on a motion in order to preserve the error on appeal. The statute does require an exception to an instruction, and provides that the exception must point out to the trial court the asserted error in the instruction. One reason for this requirement is that an instruction may contain an unintentional error which can be corrected before the jury retires to deliberate. Upon further consideration of the record in the context of the setting at the time the so-called motion was made, we are now satisfied that the “motion” was not truly a motion within the meaning of ORS 17.510, but was merely a request for an instruction. When the court, the next day, gave the instruction, if the defendant then considered it to be in error, it was the duty of the defendant at that time to call the error to the court’s attention so that it could be corrected. This procedure was not followed.
Former opinion withdrawn; judgment affirmed.