304 N.W.2d 600 | Mich. Ct. App. | 1981
GREEN
v.
GENERAL MOTORS CORPORATION
Michigan Court of Appeals.
Walpole & Holmes (by Brian R. Schrope), for plaintiffs.
Smith & Brooker, P.C. (by Thomas A. Connolly and Webster Cook), for defendant on appeal.
Before: CYNAR, P.J., and J.H. GILLIS and ALLEN, JJ.
PER CURIAM.
This case arises from a one-vehicle accident which took place on December 22, 1973, in Tuscola County. Plaintiff, Mrs. Doris Green, testified that she was driving north on Unionville Road with her son, plaintiff Martin Green, in her 1972 Vega. She said that there were patches of ice and snow on the road large enough to make a car slide as it traveled along the road. Mrs. Green stated that she was driving at about 35 mph when she heard a noise in the rear of the car, lost control of the steering, and skidded into a tree by the side of the road. Both plaintiffs were seriously injured.
Sheriff's Deputy Larry Walker investigated the accident. He stated that he noticed that the car was seriously damaged on the front and left side, and that it had struck the tree at an angle but with considerable impact. He also noted that the rear axle was projecting outward from the wheel to some degree. It became apparent that the left rear axle had been fractured at some point.
Plaintiffs brought this action against General Motors Corporation, charging that the axle was *449 defective and that it had caused the accident. Plaintiffs contended that a manufacturing defect caused the axle to fracture, which in turn affected Mrs. Green's ability to steer and caused her to lose control of the car. Defendant's theory was that the fracture of the axle came only after impact with the tree. Defendant's expert testified at trial that the fracture was caused when the force of impact with the tree was transmitted rearward through the drive train of the car.
The trial court admitted, over plaintiffs' repeated objections, a motion picture and related photographs made by defendant which showed the effect of frontal impact upon the rear axles of several vehicles. Specifically, the movie showed four automobiles, a 1971 Vega, a 1974 Plymouth, a 1974 Ford, and a 1975 Buick crashing head-on into a solid wall at thirty miles per hour. Defendant stated that its purpose in showing the film was not to reenact the accident, but to "graphically illustrate" the expert testimony describing the forces which transmit frontal impact to the rear axle assembly of the typical rear-wheel drive automobile. Defendant's expert testified on several occasions, both in and out of the presence of the jury, that the differences between the conditions in the movie and those in the plaintiffs' accident, while considerable, did not affect the physical principles which he sought to explain. The jury returned a verdict for the defendant. Plaintiffs appeal as of right.
Plaintiffs contend that the differences in the makes and sizes of the vehicles, the types of barriers, the speeds and the angles of impact were sufficient to render the movie inadmissible and irrelevant under the Michigan Rules of Evidence. Plaintiffs cite a number of cases for the proposition *450 that motion pictures or photographs are only admissible if they are virtually identical to what they purport to show. Birkhill v Todd, 20 Mich. App. 356; 174 NW2d 56 (1969), Kolcon v Smewing, 28 Mich. App. 237; 184 NW2d 244 (1970), Dennis v Jakeway, 53 Mich. App. 68; 218 NW2d 389 (1974). In each of these cases, however, the photographic evidence was offered to re-create the scene of the accident, unlike the movie in the present case.
Plaintiffs also cite Manning v Lake Superior & Ishpeming R Co, 4 Mich. App. 316; 144 NW2d 831 (1966), and Grand T W R Co v Pre-Fab Transit Co, Inc, 14 Mich. App. 26; 165 NW2d 281 (1968). Both of these cases involve an attempt to use photographic evidence to demonstrate how the accident might have occurred. Even though the evidenca was not strictly used to reenact the accident in the latter two cases, it was still essential that the photographic representation be almost exact. This was so because the focus of the photographic evidence in all of the above cases was on the conditions surrounding the particular accident in question.
The movie in the present case is distinguishable. The purpose of the movie was not to illustrate plaintiffs' particular accident, but to act as a visual aid in illustrating the expert's testimony describing the forces which transmit frontal impact to the rear axle assembly of the typical automobile. This Court has previously upheld the use of visual aids which are not necessarily exact representations of the objects which they are intended to depict. Jackson v Sabuco, 21 Mich. App. 430, 436; 175 NW2d 532 (1970). This Court has also emphasized that the admission of visual aids as evidence is a matter left to the discretion of the trial judge. Id. This is also the rule with motion picture evidence. *451 Rogers v Detroit, 289 Mich. 86; 286 N.W. 167 (1939).
Several opinions from other jurisdictions which are governed by rules of evidence similar, if not identical, to the Michigan Rules of Evidence have upheld the admission of photographic evidence whose purpose is to illustrate expert testimony about physical forces. In these cases, photographic evidence was offered despite objections that the evidence depicted conditions noticeably different from those surrounding the event in question. In Young v Illinois C G R Co, 618 F2d 332 (CA 5, 1980), plaintiff, the widow of a motorist killed in a railroad accident, sought to admit a "motion picture experiment" in conjunction with expert testimony describing the alleged dangerousness of the railroad crossing. The motion picture was offered to show that it was physically possible that the design of the crossing caused plaintiff's accident. Observing that the average layman would not understand a description of all of the physical factors involved in evaluating the design of such a crossing, the Court of Appeals found an abuse of discretion in the lower court's exclusion of the movie:
"The motion picture experiment was not offered to reenact the accident but was presented only to show that under the circumstances of this case it was physically possible for Mr. Young's car to have been diverted onto the railroad track. In a relatively recent case a district court in Pennsylvania displayed a logical approach to this question.
"`The film in question was offered to demonstrate certain principles of physics. It functioned as a graphic portrayal of the expert's oral testimony about Newton's laws of motion * * * I saw no prejudice to the plaintiff in permitting the jury to see it. In any event, plaintiff's counsel was afforded ample opportunity to cross-examine *452 defendant's expert and to explore the differences between what the film depicted and the accident at issue in the instant case.'" Young, supra, 388, quoting Zurzolo v General Motors Corp, 69 FRD 469, 473 (ED Pa, 1975).
Accord, Saldana v Wirtz Cartage Co, 74 Ill 2d 379; 385 NE2d 664 (1978), Brown v North American Manufacturing Co, 576 P2d 711 (Mont, 1978), Lahocki v Contee Sand & Gravel Co, Inc, 41 Md App 579; 398 A2d 490 (1979), rev'd on other grounds, 286 Md 714; 410 A2d 1039 (1980).
The trial in Young, supra, was governed by the Federal Rules of Evidence. FRE 401 defines relevant evidence as follows:
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
The corresponding Michigan rule, MRE 401, is identical. The trial court in the present case relied specifically on MRE 401 in admitting the motion picture. The point which the movie tended to prove was the expert's conclusion that it was physically possible for the frontal impact of plaintiffs' vehicle with the tree to have caused the axle fracture. The movie did not create the impression of reenacting the accident, nor was there any potential for jury confusion as to the purpose of the movie. Furthermore, since defendant's expert stated on several occasions that variations in the sizes and makes of vehicles, types of barriers, and speeds at impact did not affect his conclusion about the physical forces involved, the trial court properly exercised its discretion in admitting the *453 movie for the purpose of illustrating that conclusion. Thus, we conclude that the trial court did not err in admitting the motion picture evidence.
Affirmed. Costs to defendant.