638 F.2d 209 (10th Cir. 1981), 79-1514, Brandt v. French

Docket Nº:79-1514.
Citation:638 F.2d 209
Party Name:Larry J. BRANDT, Plaintiff-Appellant, v. Marvin W. FRENCH, Defendant-Appellee.
Case Date:January 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 209

638 F.2d 209 (10th Cir. 1981)

Larry J. BRANDT, Plaintiff-Appellant,


Marvin W. FRENCH, Defendant-Appellee.

No. 79-1514.

United States Court of Appeals, Tenth Circuit

January 8, 1981

Argued Nov. 20, 1980.

Page 210

William A. Wieland, Healey, Brown, Wieland & Kluender, Lincoln, Neb., for plaintiff-appellant.

Paul B. Godfrey, Godfrey & Sundahl, Cheyenne, Wyo., for defendant-appellee.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

In this diversity case the plaintiff seeks review and reversal of a judgment of the district court denying relief for injuries suffered as a result of a collision which he had with an automobile, while riding his motorcycle. This occurred in Wyoming during the late summer of 1977. Plaintiff-appellant had traveled alone by motorcycle through the northwest United States and Canada on a vacation. On the return trip he was traveling through Sheridan, Wyoming on his way to Lincoln, Nebraska when the accident happened.

Brandt was an experienced motorcyclist who at the time was driving a Harley-Davidson touring machine. He had ridden a motorcycle for approximately 60,000 miles of traveling.

His job is that of an electronics repairman at a Lincoln, Nebraska television station.

Page 211

Brandt had owned the motorcycle he was riding at the time of the accident since July 1977. This machine had 9,000 miles on it.

In order to satisfy the warranty which the seller had given with the machine, it was necessary to change the oil periodically and that time occurred just prior to the accident while appellant was at Sheridan, Wyoming. He decided to stop at the local Harley-Davidson shop for the oil change and he obtained directions as to how to get there. He was heading down Highway 87 and thought that he had probably missed the left turn which would take him to the shop.

The individual who was driving the car was Marvin French, who was a 17 year old high school student. On the afternoon of the accident French, together with two other friends stopped at French's father's service station to get gas before heading off to get one of the other boy's football equipment prior to going to practice. The three testified that they were aware of the motorcycle passing them on the highway as they were getting the gas. After filling up the tank the boys drove down the highway within the speed limit and caught up to Brandt who was slowing down and pulling to the right of the highway. French may have thought Brandt was stopping and he, French, pulled over to the left of the lane to pass. He was then driving 35 to 40 miles per hour. Brandt did not stop completely before swinging to the left into the path of French's car. French slammed on the brakes but it was unavailing.

There is a possibility that Brandt was unaware of the French car and attempted to make what he thought was a safe U-turn to go back to the road to the Harley-Davidson shop. There is little dispute in the testimony except that some of the documentary evidence suggests possible exaggeration.

The contention of Brandt is that the trial court erred in allowing the expert called on by appellee to testify. This man's name was Fay and he operated an engineering firm which specialized in accident reconstruction. He used facts such as vehicle mass; direction of skid marks...

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