Blankenship v. Union Pacific Railroad

RICHARDSON, P. J. Plaintiff has moved and defendant has petitioned for reconsideration of our opinion, 87 Or App 410, 742 P2d 680 (1987), where we held, inter alia, that certain evidence offered by plaintiff was irrelevant but that the trial court’s error in admitting the evidence was harmless. We affirmed the judgment for plaintiff. We deny both the petition and the motion. However, the motion requires some comment. Plaintiff argues that the evidence was relevant, but states that he “does not seek reconsideration of the portion of the opinion which holds that admission of this evidence was harmless error.” Plaintiff astutely anticipates our curiosity: “The court may wonder why a successful [respondent] seeks reconsideration. As noted in the briefs, there are a great number of related cases pending in the circuit court. The court’s holding on the admissibility of the [evidence] may affect the trial of those cases * * Whether evidence is relevant and admissible necessarily varies with the procedural and substantive circumstances of the particular case in which it is offered. In this case, the evidence was not probative of any disputed fact. In Rea v. Union Pacific Railroad Co., 87 Or App 405, 742 P2d 678 (1987), we held that the same evidence was relevant. If plaintiffs motion and defendant’s response to it are meant as an invitation to us to issue an advisory opinion delineating the circumstances, other than those actually before us, under which the evidence would or would not be admissible, we decline. Reconsideration denied.