dissenting.
Although the complete transcript of testimony was not included, this case appears to involve facts similar to those involved in Ritter v. Beals et al, 225 Or 504, 358 P2d 1080 (1961), in which we held that the trial judge did not err in admitting similar expert opinion testimony. This incongruity is the.result of our holding in Bitter, as reaffirmed in Yundt v. D & D Bowl, Inc., 259 Or 247, 486 P2d 553 (1971), to the effect that in such a case the admission or exclusion of such evidence rests solely within the discretion of the trial judge.
I cannot subscribe to a rule under which recovery or denial of recovery of two seriously injured persons in cases involving such similar facts is so dependent upon an exercise of discretion by two trial judges. I believe that in both cases the expert opinion was admissible under the test previously approved by this court to the effect that such expert opinion testimony is admissible whenever it could have been of appreciable “help” or “aid” to the jury in understanding the facts and in arriving at a correct result. See Ritter v. Beals et al, supra at 525;① and Yundt v. D & D *526Bowl, Inc., supra at 258.② See also Sandow v. Weyerhaeuser Co., 252 Or 377, 380, 449 P2d 426 (1969). Further reasons for this position are set forth in my dissenting opinion in Yundt v. D. & D. Bowl, Inc., supra at pages 260 to 275.
O’Connell, C. J., and Holman, J., join in this dissent.As stated by the majority, this court said in Ritter v. Beals et al, 225 Or 504, 524, 525, 358 P2d 1080 (1961), that:
“* * * The jury could have found that the ramp was unsafe without the aid of the architect * *
*526However, the basis for the decision was our finding that:
“* * * * the opinion was, however, relevant and helpful * *
and our holding that:
“* * * The expert then may express an opinion on an ultimate fact if the ultimate fact cannot be equally well decided by the jury from the same evidence upon which the expert has based his opinion.” (Emphasis added)
In Yundt v. D & D Bowl, Inc., 259 Or 247, 258, 486 P2d 553 (1971), the majority quoted with approval from 7 Wigmore, Evidence (3d ed 1940) 21, § 1923, that:
“* * * the only true criterion is: On this subject can a jury from this person receive appreciable help? * * *”