specially concurring.
I specially concur in the majority opinion because I agree with the majority that the trial court could grant a new trial because of its failure to give the requested instruction. I disagree with the majority’s decision however, that the error was not properly “excepted to” because no proper request was made. For this reason I would find it unnecessary to decide whether the trial court can grant a new trial on a party’s motion for error not properly “excepted to.”
The plaintiff requested the trial court to give instructions on ORS 483.402 and 483.404 which pertain to headlights. These statutes refer to other statutory sections and contain subsections which are irrelevant to the issues in this case. I agree with the statement of the majority “if this were an appeal from the resulting judgment for defendant, plaintiff’s appeal would fail because of the insufficiency of plaintiff’s request for instructions * *
This proceeding however, is not an appeal from a judgment for defendant. It is an appeal from an order of the trial court granting a new trial on the ground that the trial court erred in refusing to instruct as requested. The considerations supporting the rule that a judgment will not be overruled on appeal because of the, trial court’s failure to give an instruction that was insufficiently requested are completely different than the considerations present in deciding whether the trial court was in error in granting a new trial because of its failure to give a requested instruction.
In Hotelling v. Walther, 174 Or 381, 387-388, 148 P2d 933 (1944), we discussed the reasons why an appellate court should not hold a trial court in error for failing to give an insufficiently requested instruction. We stated an improperly requested instruction keeps the trial court “in the dark”; it “could well prove to he a trap both for the court and the opposing party.”
*192“* * * if the plaintiff deemed the instruction in question proper and desirable, he should have made known his wish to the court by a specific request, distinctly setting forth the instruction. The trial judge, no matter how competent and learned he may be, is not as a rule clairvoyant. He is not expected to divine counsel’s unexpressed thoughts about the law not to speculate upon the meaning of a cryptic request for instructions such as that under consideration.”
It is not error on appeal because the trial court has not been adequately informed of the party’s contention and therefore cannot make an informed ruling.
Those considerations are not present in this case. The trial court fully comprehended the substance of plaintiff’s request. The trial court denied the request because of its expressed opinion that the headlight statutes were not applicable to defendant’s tractor. The trial court in effect said at trial, I understand your request but I will not give such an instruction. At the hearing on the new trial, the trial court decided it was in error and the statute did apply and therefore the instruction should have been given.
Under these circumstances I can conceive of no reason for holding the error was not properly excepted to.