dissenting.
The majority opinion would reverse the trial court for failing to grant plaintiff a directed verdict on the issue of liability and in submitting the case to the jury on all of the facts.
At the outset, it should be noted that plaintiff did not allege that defendant was negligent in operating his truck on a highway not equipped with brakes adequate to control the movement of and to stop the vehicle. Rather, he only alleged the defendant was negligent as to speed, lookout, and control.
The evidence shows that when the defendant truck driver, Siler, was 350 feet from the intersection with a stop light and where the point of impact occurred, he attempted to apply his brakes and discovered "they were spongy.” Defendant driver had driven another truck on that particular morning and was driving this truck to the dump site. He testified:
"A I got in the truck, checked the brakes, lights and you know, the load, the tires and so on, proceeded to the dump.
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"Q What is the designated speed through that area?
"A Fifty miles per hour.
^ ifi
"A The light turned yellow and there were two cars in front of me. I applied my brakes and they were spongy. In other words, they wouldn’t stop. They were — *119I was — had them on, you know, and I couldn’t stop. I was looking for a place of escape.
******
"A * * * I checked my right rearview mirror and because I was about to go into that lane. There was a car coming up behind me, which was after I found out, it was Mr. Gray. Ah, I looked to my left to the turn lane and I was still rolling at the time. The two cars in front of me, one turned into the left lane and one stayed in front of me, so I couldn’t go there.
«‡ ‡ * sfc ‡
"A * * * I tried my emergency brake and shifted into first gear, the lower gear possible you could —
******
"A * * * All of a sudden he [plaintiff Gray] reappeared in front of me, which maybe three or four feet in front of me. I turned into that lane and bumped him.”
The defendant’s truck was going no more than five miles per hour, or approximately one mile per hour faster than the plaintiff’s car.
After the accident, defendant driver testified the following occurred:
"A Then he rolled his car into the driveway and I pulled in behind him. We got out. I checked him out. I said, 'Are you all right?’ He said, 'Yeah.’ We went around to the back of the car [plaintiff’s car]. We looked at the car. There was marks on the bumper, really wasn’t any damage at all.”
When both parties rested, the following occurred:
"[PLAINTIFF’S COUNSEL]: Your Honor, the plaintiff will move for a directed verdict on liability because the evidence showed that defendant just went down the road and (sic) one slight explanation, ran into the rear of this car. He was there to be seen.
"THE COURT: You didn’t have the courage to ask him that, Mr. Walker. He said his brakes became spongy and he put on his emergency brake. But you said something in your opening statement to the effect that he had a spongy brake several blocks before the accident, but you didn’t ask him that.
*120"[PLAINTIFF’S COUNSEL]: I wish to point out that I have some law . that if you are going to use defective brakes in a defensive manner such as he is, then you must come forward and show it was sudden and unexpected. There is no testimony this was sudden. He just said it was spongy, didn’t say it hadn’t been, was or wasn’t. I didn’t want to question him.
"THE COURT: I know you didn’t, Mr. Walker.
"[PLAINTIFF’S COUNSEL]: There is no evidence. He has an affirmative duty to show that was without warning. There was no testimony this was without warning, and I figured any question I asked him was probably going to encourage him to go into this which might or might not —
"THE COURT: I am going to deny your motion . . . .”
From the evidence just reviewed, it is clear that the truck driver checked the truck when he started out, and he found that his brakes were spongy and would not stop him when he was approaching the point of impact. There is no evidence that his brakes failed prior to this time, and plaintiff chose not to cross-examine the truck driver. This left an issue for the jury on speed, lookout and control. In Miller v. Harder, 240 Or 418, 420-21, 402 P2d 84 (1965), we reversed Lehr v. Gresham Berry Growers et al, 231 Or 202, 372 P2d 488 (1962), stating:
"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 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.
"In addition, the complexities of traffic conditions range from two or three cars following in a single lane of travel to bumper to bumper traffic in multi-lane streets and highways; from highway traffic uncontrolled by signals to urban controlled traffic. In these rear end collision cases whether or not a statutory rule such as following too closely, the giving of a signal, or speed has *121been violated in a given case should be left for the jury under proper instruction. This is equally true of the non-statutory duties. These considerations have caused us to reach the conclusion that we should follow the earlier cases cited in the dissenting opinion in the Lehr case and submit these cases to the jury.”
In Pitcher v. Leathers, 270 Or 666, 529 P2d 381 (1974), we stated, at page 670:
"Since Miller v. Harder this court has again followed the rule that, except in rare cases, the issues of negligence, causation and contributory negligence in automobile collision cases are questions for the jury. * * See numerous cases cited, including those in footnote 1.
We again reiterated this rule in Parks v. Smith, 276 Or 557, 560, 556 P2d 114 (1976).
The only issues in the pleadings in this case were lookout, control, and speed. The plaintiff chose not to cross-examine defendant Siler. Accordingly, the trial court did not err in denying plaintiffs motion for a directed verdict on liability. This is a good case to refer to the following language in Pitcher v. Leathers, supra at 670:
"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.)
The majority opinion in this case can do nothing but confuse the trial courts and the Court of Appeals when confronted with this problem. I would affirm.