Hughes v. Allis Chalmers Corp.

• Decision Date: 17 March 1980
• Docket Number: Docket No. 78-3664
• Citation: 96 Mich.App. 175,292 N.W.2d 514
• Parties: Emma L. HUGHES, Administratrix of the Estate of Russell Hughes, Deceased, Plaintiff-Appellee, v. ALLIS CHALMERS CORPORATION, a Delaware Corporation and Earle Equipment Company, a Michigan Corporation, jointly and severally, Defendants-Appellants. 96 Mich.App. 175, 292 N.W.2d 514
• Court: Court of Appeal of Michigan — District of US

Page 514

292 N.W.2d 514

Emma L. HUGHES, Administratrix of the Estate of Russell Hughes, Deceased, Plaintiff-Appellee, v. ALLIS CHALMERS CORPORATION, a Delaware Corporation and Earle Equipment Company, a Michigan Corporation, jointly and severally, Defendants-Appellants.

Docket No. 78-3664.

96 Mich.App. 175, 292 N.W.2d 514

Court of Appeals of Michigan.

March 17, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 177] David M. Tyler, Detroit, for Allis-Chalmers.

Jack R. Sullivan, Detroit, for Earle Equipment Co.

[96 MICHAPP 176] James A. Tuck, Detroit, for plaintiff-appellee.

Before MacKENZIE, P. J., and V. J. BRENNAN and WALSH, JJ.

V. J. BRENNAN, Judge.

This is a products liability and negligence action arising from an accident which occurred on March 15, 1972 and which resulted in the death of Russell A. Hughes, plaintiff's decedent. On that evening the decedent was operating a Model 545 wheel loader designed, manufactured and sold by defendant Allis-Chalmers Corporation. When he was found dead, he was lying under the right side of the loader on his back with his left shoulder pinned by the right front tire. On June 14, 1978, a Wayne County Circuit Court jury returned a verdict for the plaintiff in the amount of $405,000. The defendant now appeals by right, pursuant to GCR 1963, 806.1.

It was plaintiff's theory at trial that Mr. Hughes fell from the right hand side of the loader and struck his head. This fall would have put Hughes between the right front and right rear tires of the loader. Subsequently, plaintiff reasons, the machine rolled back and the right front wheel pinned Hughes' shoulder. Plaintiff contended that a guardrail on the right side of the loader would have prevented such a fall, that such a guardrail was recommended by the Society of Automotive Engineers and that, therefore, the defendant provided a machine which was improperly designed.

The defendant argues that since there was no eyewitnesses there was no proof that the defendant fell from the right side of the machine rather than tripping while on the ground and falling under the machine's wheels. Therefore, it was [96 MICHAPP 178] impossible to assume that a guardrail would have prevented this accident.

The defendant raises two issues on appeal.

Defendant first argues that Mr. McKibben, one of plaintiff's expert witnesses, was unqualified to testify as to the cause of decedent's head injuries or as to the reasonableness of the design of the machine in question. We disagree.

Generally, it is within the trial court's discretion to admit or exclude expert testimony and this decision will not be disturbed unless clearly erroneous. Francisco v. Parchment Medical Clinic P. C., 86 Mich.App. 583, 272 N.W.2d 736 (1978), modified 407 Mich. 325, 285 N.W.2d 39 (1979); Johnson v. Detroit, 79 Mich.App. 295, 261 N.W.2d 295 (1977).

The rules regarding expert testimony are succinctly stated in Dowell v. General Telephone Co., 85 Mich.App. 84, 92, 270 N.W.2d 711, 715 (1978), quoting from O'Dowd v. Linehan, 385 Mich. 491, 509-510, 189 N.W.2d 333 (1971).

"(W)hat are the rules governing the admissibility of such (expert) testimony?

"1. There must be an expert. * * *

"2. There must be facts in evidence which require or are subject to examination and analysis by a competent expert.

"3. Finally, there must be knowledge in a particular area that belongs more to an expert than to the common man."

It is incumbent upon the party offering an expert witness to show that the witness possesses the knowledge or skill necessary to competently testify. Siirila v. Barrios, 398 Mich. 576, 248 N.W.2d 171 (1976).

The defendant takes issue with two areas of McKibben's testimony. First McKibben testified [96 MICHAPP 179] that the decedent's head injury was most probably caused by a fall of about 10 to 12 feet at approximately 15 to 20 miles per hour. The defendant argues that, since McKibben was not a medical doctor, he was unqualified to so testify. We are not persuaded by this argument.

McKibben testified at trial that he is a certified professional safety engineer. He teaches accident reconstruction and investigation. More importantly, he has done extensive research regarding head injuries to free-falling bodies (i. e., motorcycle accident victims). Given his qualifications, the trial court did not err in allowing McKibben to testify regarding the probable cause of decedent's head injury. It appears that McKibben was more than qualified to give such an opinion.

The defendant next argues that McKibben was not qualified to testify regarding the design of the loader and the fact that it violated a Society of Automotive Engineers (SAE) standard. This argument is also unpersuasive.

McKibben testified that he is a member of SAE, an organization of people involved in transportation or self-propelled equipment. He has investigated cases in construction machinery similar to that in this case and is familiar with such equipment.

Under these circumstances we find that the witness's expert testimony was correctly received by the trial court. There was ample evidence presented at trial that he possessed the necessary knowledge and skill to enable him to competently testify, Siirila, supra.

The defendant next asserts that the...