dissenting.
The majority opinion heads down the right track up to where it correctly identifies the crucial question as being “whether there was any evidence from which the jury could conclude that, even if defendant’s representative violated the regulations, he had acted reasonably under the circumstances.” 84 Or App at 417. Suddenly, the majority appears to switch tracks. By finding evidence of reasonableness where the record is devoid of any such evidence, it commits an unfortunate legal derailment and — as a result — decides the case wrongly.
Granted, the safety watcher enumerated many kinds of happenings that “would have drawn [his] attention” away from plaintiff. However, he was at a total loss to recall or identify what actually did divert his mandated vigil at the critical moment. He offered nothing more than mere conjecture.
The problem is that the majority and defendant have misinterpreted the significance of certain testimony. The so-called evidence on which they apparently rely does not show- • — either directly or indirectly — reasonable conduct on the part of the safety watcher. For example, the point is made that the safety worker never left plaintiff and that, at the time of the incident, he was standing only three feet from plaintiff (which was apparently close enough to have the hair raised on the back of his head). I do not see what that testimony does for defendant. The safety watcher’s duty pertained to the use of his eyes. Where his feet happened to be or where he was in relation to plaintiff does not explain why he was not watching plaintiff at the crucial moment.
Defendant also alludes to testimony that the safety watcher “was responsible for the plant as a whole” and that there were two other workers on the scene who also merited watching. Clearly, the number of workers to be watched is not *419evidence of the watcher’s reasonableness in not watching the person who actually gets jolted. In any event, the watcher admitted that he knew where the other two workers were and that neither one was in the immediate area of bus bars or energized equipment. As plaintiff indicates in his brief:
“Ironically, throughout the entire workday the only area where any contact with the workers or the fencing material was possible was at the location where Plaintiff was jolted.” (Emphasis in original.)
Under the administrative rule, the watcher’s duty was to keep constant watch over plaintiff when he was situated directly underneath the high voltage bus bars, because in that work area inadvertent motions or movements could violate specified clearances. If “for any reason,” he was unable to perform that duty, it was his responsibility — as the majority recites— “either [to] designate another qualified person as the safety watcher or order the work stopped.” OAR 437-84-033. What might have been his reason for violating his duty to keep a continuous and uninterrupted watch is no evidence whatsoever that he acted reasonably. Possibilities do not carry the day for defendant.
Because of the absence of even a tiny granule of evidence from which a jury could conclude that defendant was not negligent, plaintiff is entitled to prevail on the disputable presumption of negligence. The trial judge clearly erred in not granting plaintiffs motion for a directed verdict. We should be reversing,1 not affirming.
I also believe that a good argument could be made, in the light of the watcher’s explicit responsibility under the rule to designate a substitute or to order the work stopped if he is *420unable to maintain his watch “for any reason,” that any conduct other than watching plaintiff would be unreasonable. Even if there were any evidence from which the factfinder could infer what the safety watcher was doing instead of keeping watch, I would hold that that evidence could not support a verdict for defendant. All of the possibilities that the majority and defendant suggest about what the watcher may have been doing, and why he may have been doing it, flounder on the same shoal: whatever else he did, he did not carry out the rule’s requirement that he designate another safety watcher or order the work stopped. In effect, defendant relies on the very action which violated the rule as the basis for contending that the violation was reasonable under the circumstances. That is not the way the reasonableness defense to negligence per se works. To illustrate, a defendant who runs a red light and collides with the plaintiffs car can urge that his traffic violation was reasonable because his brakes failed, an oil slick prevented him from stopping, etc. However, he cannot argue that, because he ran the light, it was reasonable for him to collide with the plaintiffs car. Phrased otherwise, the fact of the violation cannot show that the violation or the injury it caused was reasonable. Even given the majority’s and defendant’s understanding that defendant proved anything, the most it showed was that its employe violated the rule.
I must respectfully dissent.
Defendant suggests in its brief that my result would be tantamount to the imposition of strict liability. That is simply wrong. This is a typical negligence per se case, in which plaintiff must establish four things: (1) a violation of the rule; (2) resulting injury; (3) that plaintiff is in the class of persons intended to be protected; (4) and that the injury is in the class of risks intended to be avoided. As the majority correctly notes, once those matters are established, which the majority agrees has been accomplished here, a disputable presumption then arises in favor of a plaintiff. If the defendant wishes to avoid the consequences of the presumption, it must show that, despite its violation, it acted reasonably under the circumstances. This inquiry concerns the law of negligence and does not have anything to do with the concept of strict liability.