McGuire v. Nelson

• Decision Date: 13 June 1975
• Docket Number: No. 12851,12851
• Citation: 32 St.Rep. 600,167 Mont. 188,536 P.2d 768
• Parties: Douglas R. McGUIRE, Plaintiff and Appellant, .v Howard NELSON et al., Defendant and Respondent.
• Court: Montana Supreme Court

Page 768

536 P.2d 768

167 Mont. 188

Douglas R. McGUIRE, Plaintiff and Appellant, .v Howard NELSON et al., Defendant and Respondent.

No. 12851.

Supreme Court of Montana.

Submitted March 5, 1975.

Decided June 13, 1975.

Berger, Anderson, Sinclair & Murphy, Richard W. Anderson (argued), Billings, for plaintiff and appellant.

Bennett & Bennett, Bozeman, Anderson, Symmes, Forbes, Peete & Brown, Rockwood Brown (argued), Billings, for defendant and respondent.

DALY, Justice.

Plaintiff Douglas R. McGuire appeals from a judgment entered in the district court, Gallatin County, when, after presentation of plaintiff's case in chief, the court granted a motion for a directed verdict in favor of defendant American Honda Company.

The action was brought by plaintiff to recover damages suffered as a result of a motorcycle accident involving a motorcycle owned by plaintiff and manufactured by defendant.

Plaintiff, while riding the motorcycle with his wife behind him, began a descent down an incline in an area near Bozeman, Montana used by motorcyclists and known as the 'Pits', when his front wheel locked resulting in his being thrown over the handlebars onto the ground. He received a broken pelvis; his wife was not injured.

Plaintiff originally brought a negligence against against the local Honda dealer, Howard Nelson, d/b/a Harmony House, alleging the dealer negligently sold plaintiff's wife the wrong size tire for the Honda. The particular model owned by plaintiff was a CT200 90 c.c. trail bike and had the unique design feature which required a 2.50 17 tire in the front and a 2.75 17 tire in the rear. Nelson sold plaintiff's wife a 2.75 17 tire which was mounted on the front wheel. While going down the hill plaintiff alleges the tire was forced up against the fender of the Honda causing the Honda to stop, throwing both plaintiff and his wife from the Honda, resulting in the injuries to plaintiff.

The jury in that action found for plaintiff and awarded him $45,000. Nelson appealed that verdict to this Court challenging the in court demonstration by plaintiff's expert witness. The witness was allowed to perform a demonstration in the presence of the jury which was designed to demonstrate that force applied to the front wheel suspension system would bind the front wheel and how the oversized tire might have locked the wheel and caused the accident. The witness was allowed to suppress the suspension by the use of a furniture clamp on one side of the wheel.

On appeal, this Court in McGuire v. Nelson, 162 Mont. 37, 508 P.2d 558, held there was no foundation to show that the force used in the demonstration was similar to the conditions and the force applied to the front suspension by two persons on the bike at the time of the accident. The cause was returned to the district court for a new trial.

Plaintiff then filed an amended complaint naming American Honda Company as an additional defendant. The complaint against Honda is a strict liability case alleging that Honda marketed a dangerously defective product, negligently designed it, and negligently failed to warn against the consequences of misuse.

The case was tried to a jury on June 4, 1974. When plaintiff rested his case both defendants moved for a directed verdict. Honda's motion was granted and judgment entered. The matter was settled between defendant Nelson and plaintiff on a covenant not to sue, for the amount of $3,750.

Several issues are presented for review on appeal. The dispositive issue concerns the exclusion of the testimony of plaintiff's expert witness, Roy Prussing, as to his opinion concerning the design of the suspension system and its relation to the fender and tire and ultimately the safety of this design and/or its defects; also the matter of proof of causation of the accident.

Witness Prussing was duly qualified as an expert witness. His testimony shows that he was a graduate of Utilities Engineering Institute of Chicago and was a registered professional engineer in the states of Montana, Wyoming and Minnesota; that he has been a professional engineer since 1944 and been in the engineering business since 1936; that for 10-12 years he worked as an engineer for an Indian Motorcycle firm and during his association with that company he had an opportunity to work with many different types of motorcycles; that he also had extensive operational experience. There was no challenge of his credentials as an expert witness by defendant Honda Company or defendant Howard Nelson.

During testimony it was established that Prussing had examined the machine involved here and the terrain where the accident occurred. He had examined primarily the design features of the front suspension; the method employed in suspending the front wheel; the clearance built into the suspension system; and characteristics such as limits of travel clearance, etc. He explained the working parts and how the tire and wheel functioned with the suspension. He explained to the jury the meaning of the two tire sizes involved in the case. It seems that the engineer experimented with the correct tire for the front wheel and interpolated clearance figures to the larger tire to arrive at his opinion as it concerned the problem at hand.

Objection was entered and the jury was excused. Prussing explained he had used two furniture clamps to depress the suspension system to avoid any binding effect and the purpose was to establish the point at which the suspension system was fully depressed and/or let the suspension system go to the limit of its travel. This would permit the engineer to establish clearance between fender and fork within the design limits of the suspension system. At this point this testimony was had:

'THE COURT: Ask him the sixty-four dollar question. Are the tests similar to riding this under the circumstances of the case, under McGuire's testimony? We really haven't got than in, but we know what his testimony was, that he was riding it out on the Pits and suddenly it froze.

'Q. Did the use of the furniture clamps on the machine in question, Mr. Prussing, duplicate the up and down action of the suspension?

'MR. LYMAN H. BENNETT, JR.: Objcted to as calling for a conclusion of this witness without any foundation laid at all in the light of the fact that the witness can't--

'THE COURT: I don't know that it is or not. Overruled, at this time.

'MR. LYMAN H. BENNETT, JR.: May we ask him a question on voir dire?

'THE COURT: Wait a minute until we get this out. You can voir dire. You cross him, as a matter of fact.

'Q. Did the use of the furniture claimps, Mr. Prussing, in your opinion, merely duplicate the up and down action of the flection as it depresses over bumps in the terrain over which the bicycle was ridden? A. It did. It establishes the limits of travel.

'Q. And did it cause the suspension to do anything other than what it would do in normal use on the trial? A. It did not. We merely held it there so I could take measurements.

'Q. And then you released them? A. Then I released them.

'Q. All right.' Under cross-examination, he testified:

'MR. BROWN: Now, Mr. Prussing, I will hold you to your scientific standing. Can you state with any scientific accuracy that the pressure applied with the clamp was the same that you would experience in the field, with any reasonable scientific certainty?

'THE WITNESS: The clamps applied pressure to that suspension system to the point where it bottomed out or reached the end of its travel. This same thing would happen in the field under field conditions.'

There followed a great deal of testimony designed to diminish the accuracy of the engineer's tests. He freely admitted he did not measure pressure in foot pounds but seemed to indicate he could establish from the evidence at hand and his experiments, that the wheel under field conditions of the day of the accident would make contact with the fender housing. Then this testimony was had:

'MR. BROWN: So, you can't tell by your test whether or not this tire accurately locked up, seized, or bound. You can merely state that it rubbed, is that right?

'THE WITNESS: That's right. The degree of contact I could not say at that time of the accident what it was.

'MR. BROWN: Now, isn't it true, Mr. Prussing, that the real answer to that sixty-four dollar question of whether it would seize or bind as clamped in this case would be what is called a dynamic test, that is, a test in the field, actually operating the machine under similar conditions?

'THE WITNESS: That would be a dynamic test; right.

'MR. BROWN: Well, my question is: Is it not true that a dynamic test would be the only way which you could determine whether this particular tire on this particular suspension would, in fact, bind or seize as alleged?

'THE WITNESS: I don't think so. I think that could be determined statistically, also.

'MR. BROWN: Well, you previously testified that you don't know from your test whether it did, and could not tell from the test that you took; is that right?

'THE WITNESS: I did not make that test myself. I made measurements, and by calculations, in my opinion, it would rub and make contact.

'MR. BROWN: But, you are not willing to state scientifically beyond that that it would rub or make contact?

'THE WITNESS: It would make contact. It would rub. To what extent in foot pounds, I am not in a position to say.

'MR. BROWN: You, yourself, did not conduct any dynamic tests or tests in the field?

'THE WITNESS: I did not.'

Plaintiff then proposed a hypothetical question that included design, defect and causation, based on reasonable certainty as established by mechanical design standards and knowledge. After objections by both defense counsel, the court ruled.

'THE COURT: Taking the hypothetical question by its four corners, and assuming for the purpose of my ruling that all of the facts alleged and set out in the hypothetical question could be proved or would be a matter of record in this cause, the Court is still...