dissenting.
The majority says that we have “generally held” in rear-end collision cases that “allegations of negligence are questions for the jury,”① at least “in all but the most exceptional accident cases”② and that, in any event, there was sufficient evidence of contributory negligence to go to the jury in this case. I cannot agree.
1. “Allegations of negligence” in rear-end collision cases are not of themselves sufficient to require the submission to the jury of the question of negligence in the absence of evidence upon which the jury can properly base a finding of negligence.
In Miller v. Harder, 240 Or 418, 420, 402 P2d 84 (1965), in an opinion by Justice Sloan, a majority of four members of this court, in speaking of réar-end collision cases, and without discussion of the sufficiency of the evidence in that case, said:
“Experience has taught that for the court to attempt to measure the varying facts in each of these cases against the pattern of facts in the Lehr case [Lehr v. Gresham Berry Growers et al, 231 Or 202, 372 P2d 488 (1962)] and to then decide as a matter of law how well each new case fits the pattern is unsound, if not unworkable. The deviation from the peculiar facts of Lehr change with each case, and we have concluded that the court is actually doing the jury work of matching facts against the reasonable man test.”
*539The minority, in a specially concurring opinion, was of the view that, upon considering the facts of that case, there was sufficient evidence to provide a proper basis for a finding by the jury in that case, but (at 427) that:
“It seems highly unreasonable for this court to overrule the Lehr case and thus hold that, even though a person obeys the mandate of the law, a jury can still find negligence. Also, when there is no question of fact for the jury to decide, to permit the jury then to determine the law of the case.
“The majority do not say the Lehr case is wrong. They overrule that decision simply because they feel that the lawyers, trial courts and the members of this court are unable to ‘analyze’ and ‘weigh factual patterns.’
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“Courts are constantly called upon to make ‘accurate distinctions’ between factual situations in order to determine the sufficiency of evidence to take a negligence case to the jury. * * *”
The history of the decisions of this court in rear-end collision cases since Miller is instructive.
One year later, in Blanchette v. Arrow Towing Co., 242 Or 590, 593, 410 P2d 1010 (1966), this court said:
“* * * [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. * * *”
Although this court recognized in Blanchette that it would be a “rare case” that would not require submission to the jury of the issue of negligence in a rear-end collision case, it nevertheless considered the particular facts of that case and held that it was such a “rare case” and that the trial court properly held that *540the evidence of plaintiff’s contributory negligence was so clear and conclusive as to require that he be held guilty of contributory negligence as a matter of law.
In McPherson v. Cochran, 243 Or 399, 414 P2d 321 (1966), and in Jones v. Burns, 257 Or 312, 478 P2d 611 (1970), both rear-end collision cases, although holding that the question of contributory negligence should have been submitted to the jury, this court first examined the evidence to determine whether there was sufficient evidence from which, if believed, the jury could properly find contributory negligence.
In Simmons v. York, 252 Or 279, 449 P2d 645 (1969), another rear-end collision case, this court, although again referring to the case as “one of the few cases in which the inference of negligence is the only inference which the evidence suggests,” again considered the facts of that case. After doing so we held that the evidence of defendant’s negligence was so clear and conclusive so as to make it proper for the trial court to grant plaintiff a directed verdict on that issue and to hold, as a matter of law, that the defendant was negligent.
Although not a rear-end collision case, this court in Hess v. Larson, 259 Or 282, 286-87, 486 P2d 533 (1971), said (as quoted by the majority in this case):
“As a rule this court has refused to decide questions of negligence, especially in automobile accident cases, as a matter of law. Where there is evidence upon which the jury can base a determination, questions of negligence and contributory negligence are for the jury and not for the court. [Cases cited] We departed from this rule in Lehr v. Gresham Berry Growers et al, 231 Or 202, 372 P2d 488 (1962) and as a consequence found ourselves determining questions of fact which properly be*541longed to the jury. We overruled the Lehr case for this reason in Miller v. Harder, 240 Or 418, 402 P2d 84 (1965) and have since refused to determine questions of negligence as a matter of law in all hut the most exceptional accident cases. * * *” (Emphasis added)
Nevertheless, as it had done in Blanchette, Simmons, McPherson and Jones, this court in Hess went on to consider whether, under the record in that case, there was “evidence upon which the jury [could] base a determination” and, upon finding that there was such evidence, affirmed the submission to the jury of the issue of contributory negligence.
Thus, it appears that in Hess this court was of the view that its previous decision in Lehr was improper only because in that case this court “found ourselves determining questions of fact which properly belonged to the jury.” Conversely, it appears that this court did not hold in Hess that “allegations” of negligence and contributory negligence in rear-end collision cases are of themselves sufficient to require submission of such questions to the jury in “all but the most exceptional accident cases,” regardless of the sufficiency of the evidence of negligence.
According to the majority, Stevenson v. Hole, 269 Or 530, 525 P2d 1015 (1974), was another “exceptional case.” However, in that case, one also involving a rear-end collision, we simply held that the trial court was correct in its holding that the evidence of plaintiff’s alleged contributory negligence was insufficient to be submitted to the jury and in withdrawing that question from the jury—just as contended by the plaintiff in this case. We did so without discussion of Miller and without considering whether that case qualified as a “rare” or “exceptional” case, within *542the rule of Miller. Instead, we considered the evidence as offered in that case and held that it was not sufficient to entitle defendant to have the issue of contributory negligence submitted to the jury.
In the most recent rear-end collision case, Pitcher v. Leathers, 270 Or 666, 529 P2d 381 (1974), a majority of this court, again quoting Miller, held that the issue of defendant’s negligence should have been submitted to the jury in that case. But, again, the majority reached that conclusion only after a considera,tion and discussion of the evidence in that case, holding that such evidence was not so conclusive as to require a holding that defendant was negligent as a matter of law. A dissenting opinion contended that the facts were sufficient to require such a holding and to qualify as one of those “rare cases” in which the question of negligence should not have been submitted to the jury.
Thus, since Miller this court has held in rear-end collision cases that it was improper to withdraw the question of negligence or contributory negligence from the jury in three rear-end collision eases (McPherson, Jones and Pitcher), but only after considering the sufficiency of the evidence in each of those cases. At the same time, however, this court has held that it was proper to withdraw that issue from the jury in three rear-end collision cases (Blanchette, Simmons and Stevenson), after considering the evidence in each of those cases.③
Indeed, in Blanchette and Simmons we held that *543the affirmative proof of negligence was so clear as to require a directed verdict against the defendant on the issue of negligence, thus removing from the jury even the credibility of such evidence. That, of course, was far more drastic than to hold, as in Stevenson and as contended in this case, that the evidence of negligence was insufficient to go to the jury.
It follows, I most respectfully submit, that what this court has actually done in rear-end collision eases, as in other negligence cases, has been to examine the facts of each case to determine whether or not there was sufficient evidence of negligence so as to require the submission of that question to the jury, rather than to apply any hard and fast rule to the effect that “allegations of negligence are questions for the jury,” subject to exception in “rare” or “exceptional” cases.
It also follows that the sole question to be decided in this case is whether there was evidence from which the jury could properly find contributory negligence.
2. There was no evidence of contributory negligence by the plaintiff in this case.
The finding by the majority that there was sufficient evidence of contributory negligence to require the submission of that question to the jury was based upon its holding that the jury could have found that the plaintiff was negligent “in failing to properly control his car and in suddenly slowing his vehicle in the path of defendant’s vehicle,” by reason of the “facts” that
*544“* * * plaintiff suddenly slowed Ms veMcle to approximately five miles per hour when he knew defendant, because of the ‘phantom vehicle,’ was turning to the outside lane ‘to avoid hitting’ the ‘phantom vehicle’.”
With all due respect to the majority, I submit that there was no evidence whatsoever to establish as a “fact” that when plaintiff suddenly slowed his car he “knew” at that time that defendant was there and at that time “turning to the outside lane ‘to avoid hitting’ the ‘phantom vehicle.’ ”
On the contrary, the testimony was that when plaintiff was last aware of defendant’s car it was from 100 to 150 feet beMnd Ms car, and in the “inside lane,” and that he did not look into his rear-view mirror or see defendant’s car again until after he saw the “phantom car” coming at him partly in his lane as he rounded the curve in the “outside lane.”
According to the nncontradicted testimony, plaintiff then put on his brakes hard and “veered” off to the right as far as he could without hitting the rock wall and it was not until “just as 1 seen I was going to miss this car I looked in my rear view mirror to see and at that time I seen him [the defendant] swerve to the right. And that is when he ran into me.”
It follows that the majority is incorrect in stating that when plaintiff previously “suddenly slowed his vehicle” he then and at that time knew that defendant was at that very same time turning into the outside lane to avoid hitting the “phantom car.” It also follows that in the absence of such knowledge at the time that plaintiff slowed down there was no evidence whatever from which the jury could properly find that plaintiff was negligent in slowing down and “veering” *545to the right in an attempt to miss a head-on collision with the “phantom car.”
A. Admissions by defendant’s counsel.
This analysis of the evidence is also supported by the admissions of defendant’s counsel at the time of trial. Indeed, counsel for defendant at the time of trial, although pleading contributory negligence as a defense, as much as admitted that plaintiff was not negligent, but that in slowing down and swerving to the right he did no more than to react normally to the emergency of avoiding a head-on collision. Thus, in speaking of the plaintiff, defendant’s counsel made the following judicial admission when he told the jury:
“* * * He reacted the way anybody would if they saw a car coming head-on. And he doesn’t know, of course, how far Mr. Mengore was in back of the other lane. There isn’t any evidence on that.
It follows that the sole and only “fact” found by the majority as a basis for a finding of contributory negligence was directly contradicted by defendant’s own counsel, who conceded that there was no such evidence. Indeed, the argument by defendant’s counsel to the jury was not that plaintiff was guilty of contributory negligence, but that defendant was also not negligent despite the fact that he admitted that in trying to “catch up” with plaintiff (who was driving between 45 and 50 miles per hour), defendant was driving at between 60 and 65 miles per hour on a highway with a posted speed of 55 miles per hour, thus providing evidence from which the jury could have found that he was negligent.④
*546In this state of the record, and in the absence of any evidence from which the jury could properly find that plaintiff was guilty of contributory negligence, it was clearly error to deny plaintiff’s motion to strike those allegations from defendant’s answer and to withdraw that issue from the jury.
*547Indeed, for the majority to hold to the contrary is to hold that in any rear-end collision case the defendant need only allege contributory negligence and will then be entitled to have that defense submitted to the jury, despite the total absence of any evidence of plaintiff’s actual negligence. I cannot believe that this was the result intended by the majority in Miller v. Harder, supra, much less by this court in subsequent decisions, including Hess v. Larson, supra, in which this court specifically referred to the requirement of “evidence upon which a jury can base a determination.”
B. This was at least “a most exceptional case.”
Even if the majority is correct in its interpretation of Miller and Hess, the majority concedes that there may be an “exceptional case” in which this court may properly “determine questions of negligence as a matter of law.”
As previously stated, the majority refers to our decision in Stevenson v. Hole, supra, as such an “exceptional case.” In that case the question was whether plaintiff failed to give a signal before slowing or turning. Nevertheless, we held, without reference to either Miller or Hess, that it was not error in that rear-end collision case to refuse to submit contributory negligence to the jury. This is a far more “exceptional case” than that presented in Stevenson v. Hole, supra, in which two cars approached an intersection in a normal manner and in which no “emergency” was presented to either party.
It is also significant that in neither Miller nor Hess was there any “emergency,” as conceded by defendant’s counsel to exist in this case. Regardless of whether defendant could claim the benefit of the *548“emergency” rule when “closing” on plaintiff at a speed of from 60 to 65 miles per hour on a highway posted for 55 miles per hour, there is no suggestion whatever that plaintiff (driving at between 45 and 50 miles per hour) had any part in the creation of the emergency situation which confronted him when, upon starting aro.und the curve, he was confronted by another car coming at him in his own lane of traffic.
Surely this case, in which plaintiff’s frantic efforts to avoid the emergency of a head-on collision have been characterized by defendant’s own counsel as a reaction in “the way anybody would react if they saw a car coming head on,” fully qualifies as a “most exceptional case.” As such, and in the absence of any evidence of contributory negligence, this case is one which requires that this court hold, as a matter of law, that it was error for the trial court to deny plaintiff’s motion to withdraw from the jury the defense of contributory negligence.
For these reasons I must respectfully dissent.
Holman, J., and Howell, J., join in this dissent.Citing Miller v. Harder, 240 Or 418, 421, 402 P2d 84 (1965).
Citing Hess v. Larson, 259 Or 282, 286, 486 P2d 533 (1971).
In Pitcher v. Leathers, 270 Or 666, 529 P2d 381 (1974), the court also cited some other automobile accident cases in which this court held that issues of negligence and contributory negligence will be submitted to the jury, except in “rare *543cases.” None of those other cases, however, were rear-end collision cases.
As previously noted, Hess v. Larson, supra note 2, also was not a rear-end collision case.
In his opening statement to the jury, and in describing what *546both plaintiff and defendant described as the “phantom car,” defendant’s counsel in referring to the plaintiff, Mr. Berg, said:
«* * * Ii:[I]t was right directly at the front of his automobile. And, of course, he instantly reacted. And he had two options, really. He could swerve over into the wrong lane of travel, which I think it not exactly recommended. So, he took the cut-off to the right, hit the brakes. And as Mr. Berg’s car slid to a stop, Mr. Mengore’s car also trying to stop, did collide with the rear of it and was pushed over here toward the embankment. I think there was a cement wall over there.
*
“We have alleged that Mr. Berg was guilty of contributory negligence in anchoring his car out in that roadway. You may find that is not true. It’s our position simply if one of them were negligent they both were. The fact of the matter is you will probably conclude neither one was." (Emphasis added)
As the evidence came in, however, there was not even testimony that plaintiff “slid to a stop” or was “anchored” in the roadway. On the contrary, defendant did not disagree with plaintiff’s testimony that although he braked hard, he did not lose control or slide and that he was still moving at least five miles ■per hour when he was hit by defendant.
Indeed, in his closing argument to the jury, defendant’s counsel made no argument that there were any facts from which the jury could find that plaintiff was negligent, much less that he knew at the time when he swerved to the right and slowed down, that defendant was then “turning to the outside lane,” as suggested by the majority. Instead, he argued as follows:
“* * * If you find that Mr. Berg contributed to this accident by his conduct, then he can’t recover. It may well be far more likely and more reasonable that you will conclude that neither one of these young men was causally negligent in bringing this accident about. * * * This car is coming head-on at them. If that isn’t an emergency situation I don’t know how in the world you would ever create one. These people both reacted as best they could under the circumstances. * * *” (Emphasis added)