dissenting.
I must respectfully dissent because I believe that the majority is in error in affirming the action of the trial court in excluding all evidence offered by plaintiff to the effect that there was available for defendant’s use in moving its log loader a private road immediately adjacent to the highway.
In considering that offer of proof it is important to bear in mind that plaintiff’s complaint alleged that defendant operated a “traxeavator log loader” at night on a public highway at “an unreasonably slow rate of speed.”
*441In holding that it was not error to reject that offer of proof the majority says:
“ ‘Consideration must also be given to any alternative course open to the actor. Whether it is reasonable to travel a dangerous road may depend upon the disadvantages of another route; and while mere inconvenience or cost may not in themselves be sufficient to justify proceeding in the face of great danger, they may justify taking other risks which are not too extreme * * *.
“ ‘The alternative dangers to the actor himself and to others must be thrown into the scale, and a balance struck in which all of these elements are weighed.’ W. Prosser, Law of Torts 148-49, § 31 (4th ed 1971).
“Plaintiff made an offer of proof but it consisted solely of a number of other automobiles being detoured around the scene of the accident on the alternate route. This would prove that automobiles could use the alternate route, but there is nothing in the proof to show that such route was available to a vehicle with the weight of the log loader or that he proceeded on the highway ‘in the face of great danger.’ ”
Upon examination of the record it appears that this “log loader” was equipped with four large rubber tires. It also appears that the accident occurred after the log loader had been used to unload a log truck at an unloading area behind defendant’s plywood plant on the west side of the highway and while it was being returned to the shop area on the east side of the highway at a point approximately 250 feet north of the entranceway to the highway from the unloading area. According to the testimony, this equipment had traveled approximately one-half of that distance and was proceeding in next to its lowest gear, at a speed of “8, 10 or 12” miles per hour when the accident occurred.
*442There was also testimony that the entraneeway used to enter the highway was “directly across” from an entranceway on the opposite side of the highway. Objections by defendant were sustained, however, when plaintiff attempted to show that there was a roadway from that entranceway leading north to the shop area, so that the operator of the log unloader could have simply crossed the highway and used that “alternate route” back to the shop.
Plaintiff then made an offer of proof of the testimony of a state police officer to the effect that after the accident traffic going north was diverted off the highway “onto the side road”; that it was “possibly 150 feet from the accident to where this side road took off, and then it came down to the shop”; that 30 or 40 vehicles were detoured by that route, and that “none of them had any difficulty negotiating this side road.”
With all due respect to the majority, it is most respectfully submitted that a jury could properly find from this evidence that this entire 250 foot strip was contiguous to defendant’s plant and operations and that this log loader, with its large rubber tires, was designed so as to operate on both highways and “side roads” used by automobiles, as well as an off-the-road vehicle; that there was no reason why it could not have used that “side road” back to the shop area, and no such contention was made by defendant at the time of trial.
As for the suggestion by the majority that evidence of alternate roads is admissible only when the route used would be “in the face of great danger,” the answer is twofold. (1) The jury could have properly found from the evidence that to operate this log *443loader on the highway at night at a speed of 8 to 12 miles per hour did involve a risk of “great danger” of a rear-end collision with a rapidly moving automobile, and (2) as will appear from the following discussion, the true test for the admissibility of such evidence is whether or not the “risk of harm” resulting from the route or alternate route actually used is “reasonable” —surely a question for the jury under the facts of this case.
It may be that the failure to use the available private road would not, of itself, have been sufficient to constitute negligence and that the trial court, for that reason, did not err in striking plaintiff’s attempt to allege that fact as a separate and independent specification of negligence. It does not follow, however, that because a fact may not be sufficient to provide a proper basis for a separate specification of negligence, that same fact is not relevant and admissible evidence. In my opinion, the fact that a private road was available adjacent to the highway was admissible on the ground that it was one of the facts and circumstances which the jury was entitled to consider in deciding whether defendant was negligent in undertaking to move this large and heavy piece of logging equipment on a public highway at night and at a slow rate of speed.
Restatement (Second) of Torts § 291 (1965), states the following rule:
“"Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.” (Emphasis added)
*444To the same effect, see Bertrand v. Palm Springs, 257 Or 532, 536, 480 P2d 424 (1971).
Furthermore, as set forth in Restatement (Second), supra, % 302A:
“An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person.”
To the same effect, see Mezyk v. National Repossessions, 241 Or 333, 337-38, 405 P2d 840 (1965) (negligence in leaving keys in ear which was then stolen and involved in accident, causing injury to plaintiff). Cf. Eitel v. Times, Inc., 221 Or 585, 591, 352 P2d 485 (1960), and Stewart v. Jefferson Plywood Co., 255 Or 603, 607, 469 P2d 783 (1970).
In balancing these various factors and, in particular, in determining the “utility of the act or of the particular manner in which it is done,” the following rules are to be applied, according to Restatement (Second), supra, % 292:
“In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:
“(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
“(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct;
“(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.” (Emphasis added)
*445The comment to Clause (c) says that:
“If the actor can advance or protect his interest as adequately by other conduct which involves less risk of harm to others, the risk contained in his conduct is clearly unreasonable. If any other practicable course of conduct is clearly likely to give his interest a less adequate advancement or protection the question whether the risk is or is not unreasonable depends upon whether the additional risk involved in the particular course of conduct outweighs the additional advancement or protection which it is likely to secure. * * *” (Emphasis added)
See also 2 Harper and James, Law of Torts 935-36, § 16.9 (1956).
To the same effect, Prosser states in his Law of Torts (4th ed 1971) 148, § 31, that:
“Consideration must * * * be given to any alternative course open to the actor. Whether it is reasonable to travel a dangerous road may depend upon the disadvantages of another route; and while mere inconvenience or cost may not in themselves be sufficient to justify proceeding in the face of greater danger, they may justify taking other risks which are not too extreme. * * ”
It is well established that the weighing of these various factors is generally for the jury. See 2 Harper and James 936, § 16.10 (1956)①. As stated in Stewart v. Jefferson Plywood Co., supra at 607:
“* * * The jury is given a wide leeway in de*446eiding whether the conduct in question falls above or below the standard of reasonable conduct deemed to have been set by the community. The court intervenes only when it can say that the actor’s conduct clearly meets the standard or clearly falls below it.”
Indeed, as also stated by this court in Powell v. Moore, 228 Or 255, 263, 364 P2d 1094 (1961):
“We are not permitted to remove from the jury the question of defendant’s negligence unless we can say that defendant did not in any respect fail to exercise due care and that it would be impossible for reasonable men sitting as a jury to conclude that he did. * * *”
In numerous eases these rules have been applied to “alternate routes” or “alternative courses of conduct.” Although not involving identical facts, these cases include the following: Kaukonen v. Aro, 142 Cal App 2d 502, 298 P2d 611, 613-14 (1956) (defendant chose icy mountain road over safer but longer route); Saetz v. Braun, 116 NW 2d 628 (ND 1962) (defendant chose to cross bridge instead of taking safer but longer route); Stemmler v. City of Pittsburgh, 287 Pa 365, 135 A 100 (1926) (biker chose to use potholed, muddy street instead of taking longer alternative route); Williams v. East Bay Motor Coach Lines, 16 Cal App 2d 169, 60 P2d 320 (1936) (pedestrian chose to walk in street to keep feet dry and for convenience rather than to use sidewalk); Stricklin v. Rosemeyer, 61 Cal App 2d 359, 142 P2d 953 (1943) (motorist chose to get out of car on street instead of sidewall?: side); Jordan v. Sinclair *447Refining Company, 257 Iowa 813, 135 NW2d 120 (1965) (workman chose, for reasons of convenience, to nse anto hoist without safety catch); Scurco v. Kart, 377 Pa 435, 105 A2d 170 (1959) (plaintiff chose to use darkened stairway where alternative route was available).
Some of these eases involve the question of contributory negligence by a plaintiff, rather than negligence by a defendant. However, as this court observed in Leap v. Royce et al, 203 Or 566, 574, 279 P2d 887 (1955), the 'only difference between negligence for which defendant is responsible and contributory negligence is that “negligence involves a risk of injury to another, whereas contributory negligence involves a risk of injury to the one injured.” The tests and rules of law applicable to one, said the court in Leap, are usually applicable to the other.
Although not involving “alternative routes” or “alternative courses of conduct,” this court held in Nelson v. Watters, 255 Or 64, 68, 463 P2d 863 (1970), that to operate a motor vehicle at a slow rate of speed on an arterial highway is “a menace and impediment” to approaching vehicles. See also ORS 483.114.②
In my view, by the application of these well-established rules of law to the facts of this case, as alleged in plaintiff’s complaint, a jury could find that defendant had a choice between two equally available and convenient routes for the moving of its log loader, one by a public highway and the other by an “immediately adjacent private road”; that a reasonably *448prudent owner of such a slow and heavy piece of logging equipment should have realized that to move it at night on a highway and at a slow rate of speed involved the danger of a rear-end collision with a rapidly moving automobile, with the result that a reasonably prudent person would have chosen to move the equipment by the “immediately adjacent private road,” and that defendant was negligent in failing to do so in the absence of a showing by defendant of some emergency or other circumstance justifying him in moving the equipment . on the public highway and at night.
To the same effect, to use the words of Restatement, supra, % 292, comment to Clause (c), as quoted above, the jury could properly find from the facts alleged in this case that defendant could have “advanced his interest” in moving this piece of heavy logging equipment “as adequately” by use of the immediately adjacent private road, which “involve [d] less risk of harm to others,” with the result that “the risk contained in his conduct” in moving that equipment at night on a public highway and at a slow rate of speed was “clearly unreasonable.”
It is suggested that if defendant was negligent' in moving this equipment at night on the highway at a slow speed it is immaterial whether or not any alternate route was available. This, however, would overlook the rule that in determining whether a party was negligent and, for that purpose, in evaluating the “utility” of his conduct, the jury is entitled to consider all of the relevant facts and circumstances. ‘ ‘ '•
The complaint alleged, and evidence was offered, that defendant undertook to move this heavy log loader on the public highway at night and at an unreasonably *449slow speed. In evaluating those facts the jury was permitted to consider two alternative courses of conduct: the alternative of moving the log loader during daylight hours, and the possible alternative of moving it at a faster speed.③
Upon consideration of those two facts alone a jury might, or might not, find that the defendant was negligent or (this being a comparative negligence case) that any such negligence was greater, or less, in terms of “comparative fault,” than any contributory negligence by the plaintiff.④ Apparently, after considering *450these facts, the jury found that defendant was negligent, but that in terms of comparative fault defendant’s negligence was 44 per cent, compared with plaintiff’s negligence of 56 per cent.
The jury was not, however, allowed to consider a third alternative course of conduct; namely, that “there was available for defendant’s use a private road immediately adjacent to said public highway.” By excluding plaintiff’s offer of evidence to establish that fact plaintiff was deprived of his right to have the jury consider all of the relevant facts and circumstances, including that important fact, in evaluating the “utility” of defendant’s conduct and in deciding whether he acted as a reasonably prudent person would have acted under all of the facts and circumstances. Plaintiff was also deprived of the right to have the jury consider that fact in considering defendant’s conduct, together with that of plaintiff’s conduct, in terms of “comparative fault.”
Had the jury been allowed to consider evidence that “there was available for defendant’s use” in the moving of this large, heavy and slow log loader, “a private road immediately adjacent to said public highway,” the jury might well have found that in choosing instead to move that equipment on the public highway, at night and at an “unreasonably slow rate ’of speed,” the defendant was not only negligent, but that in terms of “comparative fault,” defendant’s negligence was more than 50 per cent, rather than 44 per cent. Indeed, *451a consideration of that fact might well have tipped the "balance in favor of the plaintiff in a case in which that issue was as close as it apparently was to the jury, even without consideration of that fact.
For all of these reasons, I would remand this case for a new trial.
Holman, J., joins in this dissent.The reason for this, according to the leading decision by Justice Learned Hand in Conway v. O’Brien, 111 F2d 611, 612 (2d Cir 1940), is that the risk, the gravity of the injury, and the interest to be sacrificed in avoiding the risk
“* * * are practically not susceptible of any quantitative estimate, and the second two are generally not so, even theoretically. For this reason a solution always involves some preference, or choice between ineommensurables, and it is consigned *446to a jury because their decision is thought most likely to accord with commonly accepted standards, real or fancied.”
See also Hess v. Larson, 259 Or 282, 286-87, 486 P2d 533 (1971), holding that questions of negligence are for the jury, rather than for the court, “in all but the most exceptional accident cases.”
In Schnell v. Goodwill Industries, 253 Or 100, 451 P2d 484 (1969), cited by defendant, there was no direct allegation that an alternate route or alternate course of conduct was available, as in this case, and that question was not considered by this court.
As stated in Rogers v. Tegarden Packing Co., 185 Mo App 99, 170 SW 675, 677 (1914):
“While it cannot be laid down as a set rule that ordinary prudence requires every act to be done in the safest way, yet in determining whether the way it was done meets the requirement as to the exercise of ordinary care, either as a question of law or one of fact, there must be taken into consideration the circumstances surrounding the occurrence of an injury sustained in doing the act; and the existence of a safer method which was at hand and within the voluntary choice of the injured person always enters into the question as a material element; it is one of the surrounding circumstances.”
As stated in Lovesee v. Allied Development Corp., 45 Wis 2d 340, 173 NW2d 196, 199 (1970):
“Commonly this determination is expressed in percentage of negligence in order to express in layman’s language the amount of fault or blame which should be ascribed to the tortfeasor. Winkler v. State Farm Mutual Auto. Ins. Co. (1960), 11 Wis.2d 170, 105 N.W.2d 302. In this process of apportionment the jury must consider the conduct of the parties as a whole and in doing so must consider the standard of care applicable to the acts or omissions constituting the tortfeasor’s conduct, the nature and character of the conduct and its intensity, directness and remoteness, as a substantial factor in the chain of causation.”
As observed by Prosser, Selected Topics on the Law of Torts 26 (1953), in discussing comparative negligence:
“* * * Although there is a great deal of rather casual and careless language to the effect that the plaintiff’s recovery must be diminished to the extent that his negligence has been *450‘causal,’ or has ‘contributed’ to his injury, there seems to be little doubt that, once causation is found, the apportionment must be made on the basis of comparative fault rather than comparative contribution. * * *”