¶1dissenting.
¶2I most respectfully dissent because, in my opinion, the offered testimony of previous instances of unsafe passing of vehicles by the Jeep driven by defendant Moberly was clearly relevant and admissible on the issue whether, at the time of the subsequent accident, he .pulled out from behind the Frisk car and trailer, after following behind it for some distance, and crossed the center line into the path of plaintiff’s truck.
¶3The majority say that “[t]he crucial factual issue at trial was whether the plaintiff’s truck or the Frisk trailer was on the wrong side of the center line.” This may have been the crucial issue in plaintiff’s claim against defendant Frisk. In plaintiff’s claim against defendant Moberly, however, the issue whether Mob*209erly had crossed the center line was at least an equally crucial issue.
¶4In considering the relevance of any offered evidence it is important to hear in mind that the fundamental rule of evidence is that evidence that is relevant is admissible unless it violates one of the exclusionary rules of evidence, such as hearsay, privilege, or “best evidence,” under which, because of the unreliability of certain types of evidence or for reasons of public policy, various types of evidence are excluded, even though relevant. Cf. Trook v. Sagert, 171 Or 680, 688, 138 P2d 900 (1943).
¶5To be relevant evidence must have probative value. In order to be relevant, however, it is not necessary that the evidence offered must render the desired inference more probable than other possible inferences, but it is sufficient if the evidence offered renders the desired inference more probable than it would be without the evidence or, stated otherwise, that the desired conclusion is then a natural and plausible one among other various conceivable ones. McCormick, Evidence (2d ed) 437, § 185, and Wigmore on Evidence (3d ed) 419, § 32.
¶6This court, in Trooh v. Sagert, supra, at 688, has stated the following broad test of relevance:
“… '* If a witness knows something which under the common rules of logic will advance the search for the truth, it is relevant ….”
¶7and, at 690:
“… Any fact which has a rational probative value is commonly deemed relevant, and therefore admissible. If it throws some light upon the issue, the logical connection is universally conceded.”
¶8*210The question of relevancy not infrequently arises in cases in which evidence is offered to show the conduct of a party at some time and place prior to the event in issue. Evidence of other negligent acts at other and unrelated times and places is inadmissible, as a general rule (although subject to exceptions) because the inference that the actor was also negligent at a later and different time and place is usually not considered to be a natural or plausible inference. But the conduct of a party at a time and place that is not too remote may be the basis for a natural and plausible inference that his conduct was the same at the time and place of the event in issue. Thus, in automobile accident cases, evidence of the speed or other manner in which a car was operated before an accident is frequently offered as evidence that its speed or manner of operation was the same at the point of the accident. For an exhaustive annotation on this subject, see Afmot., 46 ALB2d 9.
¶9The majority, after discussion • of the subject-of judicial discretion in considerable detail, concludes with the statement that “[t]he testimony of Kuykendall and McMartin had some probative value; that is, it had some tendency to establish that Moberly was inclined to pass other vehicles .under possibly unsafe conditions during the trip involved in the case.”
¶10Despite that statement, the majority would affirm the exclusion of such testimony by the following reasoning:
f}ie testimony of Kuykendall and McMartin had been admitted' for the jury’s consideration, it could have consumed the court’s time in the trial of collateral issues such as the identity of the Moberly vehicle, the similarity of the road and traffic conditions, and the accuracy of the witnesses’ *211observations and reporting. Moreover, it might well have been given undue weight by the jury. The trial judge could reasonably conclude that these dangers outweighed the limited probative value of the testimony. …”
¶11It is true that “[w]hen the offered testimony gets to the outer fringes of relevancy,” trial judges are allowed “a certain amount of leeway,” as stated by the majority, quoting from Byrd v. Lord Brothers, 256 Or 421, 426, 473 P2d 1018 (1970). In such cases it is proper for the trial judge to consider whether, if the offered evidence has only slight probative value, any such probative value is outweighed by other considerations, such as those of prejudice, unfair surprise, and time consumption in the trial of collateral issues. Kelty v. Fisher et al, 101 Or 110, 118, 199 P 188 (1921).
¶12When, however, offered evidence is not on the “outer fringes of relevancy,” but has substantial probative value, the trial judge has no such discretion to exclude it and the evidence must be admitted unless some good reason to exclude it has been shown. Rich v. Cooper, 234 Or 300, 312, 380 P2d 613 (1963).
¶13It may also be true that in the application of the general rule of relevance to some specific types of evidence the courts may have been influenced by such other considerations in the development of rules relating to the admission and exclusion of such types of evidence that are more limited and restricted than the general rule of relevance, as stated in Trook v. Bagert, supra, and in other similar cases and authorities. The limitations on evidence of offers of compromise and insurance against liability because of considerations of possible prejudice and public policy are two possible examples.
¶14*212The subject of evidence of prior manner of driving in automobile accident eases, however, does not appear to have been treated in this manner by most of the cases and authorities. See Annot., 46 ALR.2d 9. Of even more importance in this case is the fact that no such reasons to exclude this evidence were shown, or even urged, on the trial of this case. Indeed, defendants’ objections to such evidence were not based upon the contention that any probative value was outweighed by considerations such as collateral issues, and the trial judge, according to statements made by him of record, did not exclude this evidence because of any such considerations. Instead, he excluded it for the sole reason that he agreed with defendants’ contention that such evidence was not relevant because it did not have sufficient probative value to satisfy what he understood to be the test of relevance for this type of evidence, as stated by this court in Shoopman v. Long, 252 Or 341, 449 P2d 439 (1969).
¶15This court in Shoopmanmade no reference to such considerations as surprise, prejudice, or trial time for collateral issues, but approached the problem of admissibility of evidence of the speed of defendant’s car at a point 12 miles from the point of the accident as a problem of determining whether such evidence had any rational probative value or whether it was “too remote” to have any such value. It was in such a context that it was stated in Shoopman, at 343, that:
“… The discretion mentioned in the cases should be more accurately described as the process of judging the offered evidence in its relationship to all of the evidence relative to speed. Tf it fits into a pattern with the other evidence and shows continued speed it should be admitted. If the evidence stands alone, as in May v. Mack, supra, it should be *213rejected. In the latter case, the witness had testified to the speed 11 miles distant and that was all of the evidence connecting the accident with the speed that-had been observed by the remote witness. In May v. Mack, supra, we hold that ‘The testimony offered [of the remote speed] was not competent without an offer of further evidence connecting it with the accident and was properly excluded.’ 225 Or at 284, 356 P2d at 1062.” (Emphasis added)
¶16According to the annotation in 46 ALR2d 9, at 13-14 and 18-20, the courts have made a distinction between cases involving evidence of prior sjDeed, which may quickly be reduced, and evidence of prior driving conduct of a nature, which is more likely to continue. Even in cases involving evidence of prior speed, however, testimony of driving at an excessive speed at two or more remote points prior to the point of the accident is generally held by other courts to be admissible (46 ALR2d at 57). This is particularly true where such evidence is not the sole evidence of speed at the point of the accident, but is offered to corroborate the testimony of a witness of excessive speed at that point. (46 ALR2d at 14 and 21.)
¶17In Shoopmanthe testimony subject to objection was that of one witness who testified that at one point 12 miles from the point of the accident that defendant was driving at an excessive speed. Even that evidence was held admissible because, in addition, there was other evidence of speed at the point of the accident, including the time interval that had elapsed between the time when the witness previously observed the speed of defendant’s car and his arrival at the scene of the accident.
¶18In this case the offered testimony of the manner of driving of defendant Moberly prior to the point of *214the accident was not limited to that of one witness and at one point. The offer of proof included the testimony of witness Kuykendall that at a point about 12 miles from the accident he observed Moberly pass his truck as it was starting into a curve only 50 feet away and at a speed of 60 to 70 miles per hour. He also testified that after that curve that he observed Moberly continuing on down the road, which was “fairly curvy,” at a speed of 60 to 70 miles per hour.
¶19The offer of proof also included the testimony of witness McMartin that at a point about 10 miles from the accident Moberly passed his truck on a hill with visibility of “maybe 100 feet at the very maximum,” at a speed “in excess of 55 to 65” miles per hour. McMartin also testified that before Moberly passed him he observed Moberly coming' up behind him and passing“a couple of other vehicles” oil a two-lane highway with curves such that “there is. no room there that is long enough to pass with complete visibility 'on'the hill” and with no “really straight stretch.” McMartin also testified that after Moberly passed him and after he “topped over this hill” hé observed Mdberly at a point about- a- mile from Elkton (about eight miles from the point of- the accident). following behind •another vehicle “duck out”- in an apparent- attempt to pass as “they went around” a curve and also saw him “duck out a couple of times-and come back in.”
¶20In addition, witness Jewett testified that Moberly passed him at a speed of 55 to 60 miles per hour, in the outskirts of Elkton. That point was about five and Phé-half miles from the point of the accident.
¶21Thus, testimony was offered from which the jury could have found that prior to the accident Moberly, not only was driving at' an excessive speed, but passed *215four vehicles at places where it was not safe to pass and “ducked out” in apparent attempts to pass two or three other vehicles.
¶22This testimony was offered to corroborate plaintiff’s testimony that at the point of the accident the Moberly vehicle pulled out from behind the trailer and into plaintiff’s traffic lane for a head-on collision, in which Moberly was killed.
¶23Defendant Frisk, however, testified not only that it was plaintiff’s truck, rather than his trailer, that crossed the center line, but also that although Moberly followed his car and 20-foot trailer for three or four miles while Frisk was driving at an average of 35 miles per hour Moberly kept seven to ten car lengths behind and never attempted to pass Frisk and stayed in Ms proper traffic lane at all times. This direct conflict of testimony presented the crucial issues to be decided by the jury.
¶24As previously noted, the majority concede that the offered evidence had “some logically probative value,” but affirmed the exclusion of that evidence because of concern over “the court’s time in the trial of collateral issues” and the possibility that such evidence might be given “undue weight” by the jury.
¶25In my opinion, however, the offered testimony was not evidence of “slight probative value,” so as to make it proper to weigh its probative value against such considerations. This was the most important evidence offered by plaintiff on the issue of the liability of defendant Moberly. It was also, in my opinion, clearly relevant for consideration by the jury in deciding whether to believe plaintiff or Frisk and was at least admissible for the purpose of corroborating plaintiff’s testimony.
¶26*216As such, it is my opinion that neither the possible additional court time required as the result of such testimony nor the possibility that such important evidence might be given considerable weight by the jury is a proper reason for excluding it.
¶27It may be true, as stated by the majority, that in eases involving offers of evidence of speed or other driving conduct at points some distance from the point of the accident the trial judge has some discretion. It is also true, however, as stated by the majority, that as to such matters the trial judge does not have complete freedom of decision, but must apply the correct and proper rule of law as a standard in the exercise of his discretion in such matter.
¶28In my opinion, however, the majority fails to recognize and apply the equally well-established rule that when a trial judge rules on such a matter, but without application of the proper rule of law as a standard for the exercise of his discretion, or by application of an incorrect rule of law, he will be reversed by this court and the case will be remanded for a new trial. State v. Lewis, 113 Or 359, 364, 230 P 543, 232 P 1013 (1924). See also Tundt v. D. & D. Bowl, Inc., 259 Or 247, 486 P2d 553 (1971).
¶29In this case the record is clear from statements by the trial judge in considering this offer of testimony that his understanding of the rule of Shoopmm was that “isolated instances” of prior unsafe driving were inadmissible “unless you can show a continued course of conduct down to the scene of the accident.” The trial court also stated that in Shoopmanthe “continued course of conduct” was proved by proof of “the time element,” i.e., that the defendant in that case “clearly would have had to have continued the speed to arrive at the scene of the accident at the time that he did.”
¶30*217As pointed out at trial by counsel, however, the offered testimony involved far more than “… just a couple of isolated instances.” Of far greater importance, however, Shoopmandoes not say that there must be proof of a “continued course of conduct down to the scene of the accident.” Instead, Shoopman(at p 343) says that it is sufficient if the offered evidence “… fits into a pattern with the other evidence and shows continued speed … In Shoopmanthis court went on to expressly approve of its prior decision in May v. Mack et al, 225 Or 278, 356 P2d 1060 (1960), in which it was held that testimony of speed at one point 11 miles from the accident “… was not competent without an offer [of proof] of further evidence connecting it with the accident.” 225 Or at 284 (emphasis added).
¶31In “speed” cases, proof of such a “time element” may be sufficient in cases involving alleged excessive speed to “connect up” evidence of excessive speed at points prior to the point of the accident. Just what additional proof would have been required by this trial court in cases involving other types of unsafe driving, including unsafe attempts to pass other vehicles, in order to establish a “continued course of conduct down to the scene of the accident,” does not appear, unless it would require testimony of a witness who followed defendant’s vehicle for the entire intervening distance.
¶32As previously stated, the jury could have found from the offered testimony in this case that prior to arriving at the point of the accident Moberly passed at least four other vehicles and “ducked out” in an apparent attempt to pass at least two or three additional vehicles, all when it was not safe to do so. In my opinion, the offer of proof satisfied the “pattern” *218of conduct requirement of Shoopman, as well as the requirement of “connecting” evidence, as stated in May, at least when offered to corroborate the testimony of plaintiff. Based upon that testimony the jury could have reasonably found that plaintiff’s testimony that Moberly pulled out over the center line behind Frisk’s trailer and into the path of plaintiff’s truck was true and that Frisk’s testimony to the contrary was not true.
¶33It is my opinion that the approval by the majority of the exclusion of this testimony is inconsistent with basic and established principles on the subject of relevance in that the majority approves the application by the trial judge of a standard so strict as to require that the offered evidence must be such as to render probable the inference that Moberly tried to pass the Frisk trailer at the time of the accident. On the contrary, as previously stated, evidence is admissible as relevant if, based upon such testimony, the desired inference is a natural and plausible one, among other possible inferences. As previously stated by this court in Trook v. Sagert, supra at 688, if the offered evidence “under the common rules of logic will advance the search for truth, it is relevant.”'
¶34More specifically, it is my opinion that the approval by the majority of the exclusion of this testimony represents the approval of an improper and overly limited application of the rule as previously stated by this court in Shoopmanand in Mayby requiring proof of a “continued course of conduct” to the point of the accident, rather than by other proof sufficient to establish a “pattern” of conduct or to “connect” such conduct as by evidence of several instances of similar improper driving conduct, as in this case.
¶35*219Although this court has not previously had occasion to decide a ease involving similar facts, most courts which have done so have held that such evidence should be admitted, even in cases involving alleged excessive speed, particularly when it corroborates other evidence, as in this case. Byrne v. Matczak, 254 F2d 525, 527 (8d Cir 1958); United States v. Uarte, 175 F2d 110, 112 (9th Cir 1949); Dromey v. Inter State Motor Freight Service, 121 F2d 361, 363 (7th Cir 1941); Wigginton’s Adm’r v. Bickert, 186 Ky 650, 217 SW 933, 934 (1920); Hefele v. Rotter, 197 Wisc 300, 222 NW 220, 221 (1928); Quinn v. Zimmer, 184 Minn 589, 239 NW 902, 904 (1931); Mathews v. Dudley, 212 Cal 58, 297 P 544, 545 (1931); Shellenberger v. Reading Transp. Co., 303 Pa 122, 154 A 297 (1931); Jones v. Northwestern Auto Supply Co., 93 Mont 224, 18 P2d 305, 307 (1932); Patton v. People, 114 Colo 534, 168 P2d 266, 268 (1946); Interstate Veneer Co. v. Edwards, 191 Va 107, 60 SE2d 4, 6 (1950); State v. Schrader, 243 Iowa 978, 55 NW2d 232, 235 (1952); Anderson v. Elliott, 244 Iowa 670, 57 NW2d 792, 797 (1953); Rowe v. Gibson, 309 SW2d 173,175 (Ky 1958); Security Milling Company v. Ketchum, 185 Kan 694, 347 P2d 433, 437 (1959); Atkinson v. Mock, 271 Minn 393, 135 NW2d 892, 894 (1965); and Nat Harrison Associates, Inc. v. Byrd, 256 So 2d 50, 55 (Fla App 1971). See also 46 ALR2d 9 at 57-60.
¶36These cases include decisions in which trial courts have been reversed for excluding such evidence. For examples, see Tingle v. Foster, 399 SW2d 475, 477 (Ky 1966), and Shapiro v. Klinker, 257 Wisc 622, 44 NW2d 622, 624 (1950). In addition, see Briggs v. Burk, 174 Kan 440, 257 P2d 164, 172 (1953). No cases have been cited by counsel, and we have found none, in which *220a trial court has been affirmed for excluding evidence substantially similar to that offered in this case.
¶37For all of these reasons, I must respectfully dissent.