dissenting.
The majority opinion states:
“Since we learned the hard way with Lehr, we do not intend to make the same mistake again. We will, as we did prior to Lehr, hold that issues of negligence and causation, including questions of speed, lookout and control, are for the jury.” (Footnote omitted.)
Apparently, in all future cases involving rear-end collisions, the issues of causation and negligence will be questions for the jury. This is an extension of the rule announced in Miller v. Harder, 240 Or 418, 402 P2d 84 (1965), which, as the majority states, overruled Lehr v. Gresham Berry Growers et al, 231 Or 202, 372 P2d 488 (1962). In Blanchette v. Arrow Towing Co., 242 Or 590, 410 P2d 1010 (1966), we stated:
“* * * [I] t was not intended in the Miller case to announce a doctrinaire rule that every rear-end collision case must necessarily be submitted to the jury. No doubt it is a rare case arising out of an automobile accident — whether it be a rear-end collision or otherwise — in which it appears as a matter of law that the plaintiff is guilty of * * * negligence.” 242 Or at 593.
In “rare” cases the rule of Miller has not been applied. Blanchette v. Arrow Towing Co., supra, and Simmons v. York, 252 Or 279, 449 P2d 645 (1969). I believe that the instant case is another of the “rare” cases and that the facts did not present jury questions on lookout, speed and control. I would affirm the judgment.
Sloper, J., joins in this dissent.