233 Pa. Super. 112 | Pa. Super. Ct. | 1975
Opinion by
The sole issue before the Court is whether testimony of appellant’s expert witness was properly excluded by the court below. After excluding the evidence, the trial court granted appellees’ motions for a compulsory non-suit.
In January, 1970, appellant, Thomas Ritson, purchased a used 1969 Chevrolet Impala from Don Allen Chevrolet, a Pittsburgh area dealership. Hertz Corporation sold the Impala to Don Allen Chevrolet after the vehicle had been driven approximately 19,000 miles.
After several hours at South Side Hospital where appellant was treated for lacerations and. head injuries, he was admitted to Allegheny General Hospital. He remained in Allegheny General Hospital for eleven days.
The automobile was towed to Gumbel’s Body Shop. A fender and the front bumper were removed at the garage. Three weeks after the accident, on November 16, 1970, Wilbert Messmer, an automobile mechanic, examined the Impala to determine if any mechanical defects could have caused the sudden racing of the engine and the appellant’s losing control of the steering of the car. After the expert’s examination, but prior to trial, the owner of the garage died and the shop was closed at the time of trial.
Appellant filed an action in trespass against Don Allen Chevrolet, based on Section 402A of the Restatement of Torts, 2d. He alleged that because the Impala was sold in a defective and unreasonably dangerous condition the appellee was strictly liable for appellant’s damages. Hertz Corporation, the prior owner of the Impala, and General Motors, the manufacturer, were joined as additional defendants. The case came to trial on September 28, and October 1, 1973. After appellant had testified as to the
After the court found that the expert was qualified to testify as to the cause of the accident, an offer of proof was made at side bar. The appellant wanted to introduce evidence that the motor mounts
The lower court stated that Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 219 A.2d 357 (1966), compelled the exclusion of the expert testimony. In Semet, the appellant wanted to introduce an expert witness to testify as to the condition of a ladder from which appellant had fallen: “Fifty-two days after this accident Martin Alkon, a registered Engineer, went to the scene and examined a ladder to which he had been directed by unnamed employees of defendant Andorra Nurseries, Inc. Photographs were taken of this ladder. . . . The lower Court properly held that this testimony and the accompanying photographs were inadmissible. There was no legally admissible testimony that the ladder examined by Alkon and the ladder photographed was the ladder from which plaintiff fell.” 421 Pa. at 487, 219 A.2d at 359. By way of dictum, the Court stated further that . . even if this were proven to be the same ladder, the proffered evidence would still be inadmissible. Fifty-two days passed before the ladder was examined. There was no testimony that the condition of the ladder had not changed from the time of the accident.” 421 Pa. at 487-88, 219 A.2d at 359. (emphasis added).
The law is clear that to introduce evidence as to the condition of a physical object “ ‘evidence of its condition at a prior or subsequent time is admissible if accompanied by proof that it has not changed in the meanwhile.’ ” Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 133, 207 A.2d 843, 846 (1965), citing Henry, Pennsylvania Evidence, Vol. 1, §33, p. 60 (4th ed. 1953). In Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A.2d 414 (1962), the Supreme Court discussed the testimony given by an expert mechanic relating to a brake failure: “ ‘The evidence had been objected to as too remote. The mere passage of time, unless considerably greater than twenty days, cannot change the condition of the brakes. The greater the passage of time, however, the greater the
Finally, an expert can seldom offer an opinion with absolute certainty. The failure of an expert to rule out all possible causes of a condition is not a basis for excluding the testimony, since to require such a high degree of certainty would deny the jury copious relevant evidence. “A precise scientist who bases his opinion on an appraisal of probabilities is nonetheless an expert. In our view his opinion deserves jury consideration.” Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 181, 242 A.2d 231 (1968). Once a threshold showing is made that the condition of an object has remained the same or that an expert has some basis in fact for his opinion, the evidence is admissible ; the weight of the evidence is then a matter for the jury. Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A.2d 896 (1967); Flavin v. Aldrich, 213 Pa. Superior Ct. 420, 250 A.2d 185 (1968).
Appellant’s expert testified to sufficient facts as to the condition of the motor mounts so that the issue should have been submitted to the jury. Andorra Nurseries, supra, dealt with the failure to introduce any evidence that the physical object had not changed since the accident. The expert in the present case testified that the mounts had not been tampered with and that they were not damaged since the accident. He testified to ample underlying observations of tangible data that would have enabled the jury to determine the weight to be given his conclusion that the damaged motor mounts were causally connected with the accident.
Therefore, the order of the court below is reversed and a new trial is granted.
Jacobs, J., dissents.
. The Record includes a letter from General Motors Corporation, dated March, 1972, to owners of a number of models of Chevrolets that gives the following description of motor mounts and the problem that some drivers had experienced: “Your vehicle is equipped with two front engine mounts; one positioned on each side of the engine. An engine mount consists of a rubber cushion sandwiched between two metal plates. It supports and cushions the engine. Since the center portion of an engine mount is made of rubber, it is subject to fatigue from constant flexing during vehicle operation and from engine compartment heat . . .
“The possible safety hazard . . . exists when, as a result of fatigue or collision damage, the rubber portion of an engine mount has separated. When this condition exists, very rapid acceleration of the vehicle from a stop or from very low speed can result in the engine rotating sufficiently to interfere with the accelerator linkage and to cause the throttle to be held open temporarily . . . A sharp left turn during forward acceleration can increase the possibility of engine rotation if the left engine mount had separated.”