Brandt v. French, 79-1514
| Citation | 638 F.2d 209 |
| Decision Date | 08 January 1981 |
| Docket Number | No. 79-1514,79-1514 |
| Parties | 7 Fed. R. Evid. Serv. 1726 Larry J. BRANDT, Plaintiff-Appellant, v. Marvin W. FRENCH, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
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.
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. 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; dimensions of vehicles involved; dents, breaks and paint transfers of the vehicles; road surface textures; and physics principles of mechanics such as inertia, velocity, coefficients of friction, and operating characteristics of vehicles (in this case, including how much a motorcycle must lean at various speeds to make turns), from which the expert claimed to be able to give an accurate picture of the sequence of events immediately preceding the accident. The expert opined that the French vehicle was doing 37 miles per hour and the Brandt motorcycle was going 8 miles per hour. It was said also that the brakes of the French vehicle were applied an instant before impact and that on impact the axis of Brandt's motorcycle was "60 degrees to the center line of the road, which means that the motorcycle was, in fact, crossing the lane of travel."
The testimony of Mr. Fay was detailed and was supported by color photographic displays, a short film and projected slides. It was these three exhibits that produced the dispute that Brandt relies on in Mr. Fay's analysis. The objection that Brandt makes to the photographs is that they do not properly depict what occurred. The photographs are of stationary objects and they do not depict the motion of the vehicle and the motorcycle therefore they are irrelevant. In order to depress the front of the vehicle as would tend to occur in braking, Mr. Fay requested that a person sit on the front fender. Brandt objected to the appearance of this man sitting on the fender contending that it was overly prejudicial so as to suggest to the jury that Brandt was a "hells angel" type.
The film illustrates various angles at which a motorcycle in motion at various speeds on a parking lot would lean and the radius of curve resulting from such leans. In the film the automobile used is stationary. Brandt objects that this film fails to illustrate the facts and is not a proper experiment because the automobile is not moving and there is no way to judge the speed of the motorcycle. Another objection is that the pavement of the parking lot where the film was shot was not similar to the gravel shoulder where the turns, according to the expert's opinion, would have had to have been started if they were to represent what happened at the scene of the accident.
A series of slides represents an extrapolation from the theoretical position and velocities of the vehicles at impact back to a fraction of a second before the accident. The slides, according to Mr. Fay, show that Mr. Brandt must have gone off the pavement to the right just before swinging to the left. The objection to the information which was obtained from the slides is that two eye witnesses and, arguably the defendant himself, did not testify to the facts as shown by the expert, i. e. that Brandt left the road pavement to the right just before swinging left. Brandt contends that this point is crucial to his case because if Brandt did leave the pavement, then the Wyoming statutes would shift the right of way from Brandt to French. If Brandt did not leave the pavement he would have the right to an unimpeded full use of the lane width.
The main objection to the testimony of the expert is that he did not work with reference to the facts that were brought out at the trial. In other words he formed hypothetical conclusions which, it is argued, were merely speculation and were therefore prejudicial.
The underlying principle applicable to expert testimony is that it is left largely to the discretion of the trial court and it is not overturned in the absence of an abuse of...
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85 Hawai'i 336, Tabieros v. Clark Equipment Co., 17339
...undertake their best efforts in attempting to view the subject visual recording prior to ruling on its admissibility. Cf. Brandt v. French, 638 F.2d 209 (10th Cir.1981) (the trial judge Page 1319 review the film in question outside of the jury's presence before deciding whether to admit the......
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Nachtsheim v. Beech Aircraft Corp.
...existed at the time of the accident. Hale, 756 F.2d at 1333; Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981); Brandt v. French, 638 F.2d 209, 212 (10th Cir.1981); Maskrey v. Volkswagenwerk Aktiengesellschaft, 125 Wis.2d 145, 370 N.W.2d 815, 825 (Ct.App.1985). However, "[d]emonstrat......
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Harvey By and Through Harvey v. General Motors Corp.
...actual events. Millers' National Insurance Co., Chicago, Ill. v. Wichita Flour Mills Co., 257 F.2d 93 (10th Cir.1958); Brandt v. French, 638 F.2d 209 (10th Cir.1981). Where experiments such as this are not based on the facts, however, it must be made clear to the jury that the evidence is a......
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Randall v. Warnaco, Inc., Hirsch-Weis Div., HIRSCH-WEIS
...became very close to a reenactment of the accident, and as such its admission could be deemed unduly prejudicial. See Brandt v. French, 638 F.2d 209, 212 (10th Cir. 1981); Young v. Illinois Central Gulf Railroad Co., 618 F.2d 332, 338 (5th Cir. 1980). 7 We do not rule on the admissibility o......
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Authentication
...under rule 403 where the times of the conversations marked on the chart did not match stipulated conversation times. Brandt v. French , 638 F.2d 209 (10th Cir. 1981). A trial judge should review a film outside the presence of the jury before permitting its showing. Hall v. General Motors , ......
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Authentication
...under rule 403 where the times of the conversations marked on the chart did not match stipulated conversation times. Brandt v. French , 638 F.2d 209 (10th Cir. 1981). A trial judge should review a ilm outside the presence of the jury before permitting its showing. Hall v. General Motors , 6......
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Authentication
...under rule 403 where the times of the conversations marked on the chart did not match stipulated conversation times. Brandt v. French , 638 F.2d 209 (10th Cir. 1981). A trial judge should review a ilm outside the presence of the jury before permitting its showing. Hall v. General Motors , 6......
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Authentication
...under rule 403 where the times of the conversations marked on the chart did not match stipulated conversation times. Brandt v. French , 638 F.2d 209 (10th Cir. 1981). A trial judge should review a film outside the presence of the jury before permitting its showing. Hall v. General Motors , ......