dissenting.
Because I think this case should be affirmed, I dissent.
The majority, without setting out the facts, analyzes the case as though it were decided on an ORCP 54B(2) motion (insufficiency of plaintiffs’ evidence) or a motion under ORCP 60 (directed verdict). However, this case was submitted to the jury, and the jury’s verdict was in favor of defendants.
While it may not have been plaintiffs’ theory that the electrical heating was inadequate, thereby requiring them to install a woodstove, it was their theory that the fire started as a result of their using the stove with a defective flue. The testimony of both plaintiffs, however, was that there had been *629no fire in the stove for at least two days before the house fire. It was also their testimony that plaintiff Paprock, upon going to turn on the electric switch for the pump, began throwing dirt on the fuse box, because “that’s where the flames were.” Plaintiff Redbear also testified to her throwing dirt on the fuse box, because flames were coming out of it.
From a review of this record, including the testimony of the plaintiffs’ expert and his convoluted theory of how the fire began, it appears to me most highly probable that the jury simply did not accept plaintiffs’ theory that the fire started because of a defective flue. In other words, assuming that the instruction excepted to was error, it was harmless. I do not see how it could have materially affected the jury’s verdict. Accordingly, we should affirm. Therefore, I dissent.