Jackson v. Fletcher
| Decision Date | 20 April 1981 |
| Docket Number | No. 79-1543,79-1543 |
| Citation | 647 F.2d 1020 |
| Parties | 7 Fed. R. Evid. Serv. 1839 Thomas O. JACKSON and Mattie L. Jackson, Husband and Wife, Oklahoma citizens, Plaintiffs-Appellants, v. Lewis Riley FLETCHER, a California citizen; Shay Distributing Company, Inc., aCalifornia corporation; and Protective Insurance Company, an Indianacorporation, Defendants- Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Larry A. Tawwater, Lampkin, Wolfe, McCaffrey & Tawwater, Oklahoma City, Okl. (John Sushnik, Chastain, Heath & Sushnik, Oklahoma City, Okl. and Ray Vaughn, Vaughn & Stafford, Edmond, Okl., with him on the brief), for plaintiffs-appellants.
Alex Cheek, Oklahoma City, Okl. (Noma D. Gurich with him on the brief), Cheek, Cheek & Cheek, Oklahoma City, Okl., for defendants-appellees.
Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.
The plaintiffs-appellants, Thomas O. Jackson and Mattie L. Jackson, seek review of a judgment based on an unfavorable jury verdict in which the plaintiff, Thomas O. Jackson, sustained physical injuries in an automobile which was demolished following a collision with a tractor-trailer combination driven by defendant-appellee, Fletcher. Jurisdiction exists by reason of diversity of citizenship. 28 U.S.C. § 1332.
This accident occurred on May 10, 1977 at an intersection in an outlying section of Oklahoma City. The defendant tractor-trailer truck driver had been proceeding west along 122nd Street and the collision occurred at the intersection of 122nd Street with Bryant. Plaintiff had been driving his passenger automobile south on Bryant Street, a through street. The tractor-trailer truck which was being driven by Fletcher, who had his wife and small son with him, was making delivery of frozen food for Shay Distributing Co., the owner of the tractor-trailer. The defendant, Protective Insurance Company, is the insurance carrier. One Hundred Twenty-Second Street is not a through street. There were no witnesses other than the principals, and they contributed very little. The speed of both vehicles is the product of estimates by so-called experts. However, other witnesses, including an unbiased one, the police officer, who was at the scene immediately after the accident, said that each of the vehicles was travelling 30 miles per hour at the time of impact. A sign showing a black cross and a yellow background, warning of the intersection, is posted on 122nd Street about 750 feet from the intersection. The posted speed limit on Northeast 122nd Street is 45 miles per hour. At the approach to the Bryant Street intersection on 122nd Street there is a warning of the presence of a stop sign ahead to westbound traffic. A stop sign controls not only westbound traffic but eastbound traffic as well on 122nd Street. Thus Bryant is a protected street and traffic on Bryant is not required to stop. The defendant truck driver claimed that he did stop and then proceeded forward at a rate of five miles an hour.
The area in question is generally rural; there are only a few houses in the vicinity and they are about a quarter of a mile from the intersection.
The accident occurred at approximately 1:00 p. m. in the afternoon and the pavement was dry and the weather was clear. Jackson, the plaintiff, testified that when he was a few feet away from the intersection he recalled seeing a truck in the intersection and he thought he'd swerve to the right to avoid striking the truck and that's all that he remembered. The accident happened in a short period of time and Jackson was unable to remember whether he had time to put on his brakes.
The officer, Mr. Ted Mapes, came to the scene very soon after the collision. He fixed the point of impact from observation of the debris. His location of the point of impact was nine feet east of the west curb line of Bryant and approximately three feet south of the north curb line of 122nd Street. He testified that the truck driven by defendant Fletcher left approximately 20 feet of skid marks and from the point of impact travelled approximately 60 feet west, where it ran off the roadway into a ditch and travelled 126 feet up an incline where it came to rest turned over on its side. Mapes found no skid marks from the plaintiff's automobile. Based upon his determinations as to positions of the vehicles and his other observations Mapes testified that the speed of the Jackson vehicle at the time of the collision was approximately 30 miles per hour and the speed of the truck was likewise in the neighborhood of 30 miles per hour.
A physicist, Doctor Moody Coffman, was called by the plaintiff to investigate the accident. Dr. Coffman's testimony established that the truck did not stop at the stop sign which faced it. He testified that based upon his observation of the scene, photographs of the vehicles and information furnished by the investigating officer, his opinion was that the Jackson vehicle entered the intersection at a speed of between 21 and 48 miles per hour, and the truck entered the intersection at a speed of between 24 and 59 miles per hour. Additionally he testified that based upon his findings the Jackson vehicle was travelling .88 times as fast as the truck at the time of the collision. Coffman testified that in his opinion it was impossible for the truck to acquire the speed it had reached had it actually stopped at the stop sign; that the truck could not have stopped and then proceeded up the incline 186 feet in first gear, which was the gear which Fletcher maintained it was in at the time of the accident.
Testimony of Mr. Fletcher (the truck driver)
He said that he saw the stop sign and stopped. He did comment that it was not a good place to put a stop sign (at the bottom of a hill); that if there was too much truck traffic it could make it difficult for the truck to stop and then start back up hill again. His only knowledge of the accident, he said, was a small blur out of the corner of his eye. He heard a bang and then became unconscious. In interrogatories which were read to him during his cross-examination he had testified that he stepped on the brakes of his truck and tried to avoid the accident.
Defendants' experts were Dr. Craig Jerner, a metallurgist, and his assistant, one John Harcourt. Their testimony was based on experiments they conducted in which it was sought to disprove Coffman's theory that the truck did not stop. Fletcher had testified that he was driving a 1977 International tractor-trailer which was brand new and in perfect condition. With its load it weighed 69,000 pounds. The experiment was conducted with a 1977 International tractor which was approximately two years old and a trailer which was empty. The result was a difference of 37,000 pounds between the weight of the accident vehicle and the test vehicle. In addition the test vehicle had a different size engine. It had an eight cylinder engine as compared with the accident vehicle which had six cylinders. The person who made the test kept his foot on the accelerator all the way through the intersection, based on the point of impact as located by the defense experts rather than the point described by Mr. Mapes. No skid marks were made by the test vehicle although the officer had said that the truck left at least 20 feet of skid marks and no impact was made with the test vehicle such as was encountered by the accident truck when it struck the Jackson vehicle. In Jerner's opinion the cause of accident was Jackson's lack of attentiveness as he drove the vehicle. Neither Jerner nor Harcourt placed primary emphasis on Jackson's speed as the cause of the accident. Dr. Jerner estimated Jackson's speed at impact to have been 40 miles per hour, while Harcourt placed it at 45 miles per hour. Both men briefly mentioned the possibility that Jackson may have been going faster before impact. However, the primary thrust of their opinions was that Jackson had lacked attention as he approached the intersection and that due to inattention he had failed to see the truck moving slowly through the intersection. By the time he saw the truck it was too late for Jackson to avoid it.
Coffman, on behalf of Jackson, had said that the accident was caused from the fact that Fletcher drove the truck straight through the stop sign and the intersection; that he did not see the automobile coming until it was too late to stop and only then did he apply brakes.
The expert testimony regarding the experiments that were conducted came from Dr. Craig Jerner and his assistant, Mr. Harcourt. The experiments were designed to show the length of time that was required for the Fletcher vehicle to cross the intersection and to overcome the testimony of Dr. Coffman on behalf of the plaintiff that the truck did not stop. As shown before, the truck that Fletcher was driving at the time of the accident was a 1977 International tractor-trailer which was brand new, fully loaded, and weighed approximately 69,000 pounds. The Jerner-Harcourt experiment truck was a 1977 International tractor. It pulled an empty trailer as a result of which the weight differential was shown to be 37,000 pounds lighter than the equipment which was in the accident. The test vehicle at the time of the making of the test started in first gear from a stopped position near the stop sign, and accelerated at full power to the point of impact. As we noted before, the point of impact was in dispute; the defense experts placed it near the west edge of the intersection rather than near the middle of the intersection as determined by Officer Mapes. Consequently the test vehicle had a longer distance to accelerate than it would have had if the point of impact located by Officer Mapes had been the reference point. When the test vehicle reached the point of impact the driver removed...
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Table of Cases
...App. 634, 512 S.E.2d 34 (1999), §541.4 J. Gerber & Co. v. S.S. Sabine Howaldt, 437 F.2d 580, 594 (2d Cir. 1971), §450 Jackson v. Fletcher 647 F.2d 1020, 1027 (10th Cir. 1981), §541.5 Jaffee v. Redmond, 518 U.S. 1, 135 L. Ed. 2d 337, 116 S. Ct. 1923 (1996), §593.2.1 James v. Brown , 37 S.W.2......
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Commonly Used Experts
...of out-of-court experiments must lay a proper foundation by showing a similarity of circumstances and conditions. Jackson v. Fletcher 647 F.2d 1020, 1027 (10th Cir. 1981), held that the defense expert’s reconstruction was inadmissible because the expert failed to consider a weight different......
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Table of Cases
...App. 634, 512 S.E.2d 34 (1999), §541.4 J. Gerber & Co. v. S.S. Sabine Howaldt, 437 F.2d 580, 594 (2d Cir. 1971), §450 Jackson v. Fletcher 647 F.2d 1020, 1027 (10th Cir. 1981), §541.5 Jaffee v. Redmond, 518 U.S. 1, 135 L. Ed. 2d 337, 116 S. Ct. 1923 (1996), §593.2.1 James v. Brown , 37 S.W.2......