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November 16, 1973

Myrna R. LOGSDON, Mother and Administratrix of the Estate of her son, Mark F. Logsdon, Deceased, Individually and as Wife of Hugh D. Logsdon, Plaintiff,
Joel P. BAKER et al., Defendants

Youngdahl, Senior District Judge.

The opinion of the court was delivered by: YOUNGDAHL

YOUNGDAHL, Senior District Judge.

 This is a wrongful death and survival action by the mother of the decedent to recover damages for the death of her son due to the alleged negligence of the Colonial Fuel Company. Plaintiff is the mother of Mark F. Logsdon and the administratrix of his estate. Defendants are a partnership trading as the Colonial Fuel Company, and the owners of the fuel truck involved in this accident. There is no issue of agency.

 Said action came before this Court for trial before a jury on the 4th day of September, 1973. When it appeared, on the issue of liability, that there were no eyewitnesses to the accident and that plaintiff's endeavor to establish a prima facie case rested solely on the testimony of an expert witness, the Court excused the jury in order to conduct a voir dire of the expert. This was done so that the Court, in its discretion, could determine as a matter of law whether there was sufficient factual basis to receive into evidence the expert's opinion on the issue of liability.

 After the Court heard the testimony of the expert witness and the arguments of counsel on the admissibility of such testimony, it ruled such expert opinion testimony totally inadmissible. When plaintiff advised the Court that she had no other evidence of liability other than that of the expert's testimony, the Court directed a verdict in favor of defendants. The Court did not consider, as an issue, the affirmative defense of contributory negligence.

 It is undisputed that on February 4, 1972, at about 11:45 a.m., plaintiff's decedent, Mark F. Logsdon, was operating a motorcycle in a northerly direction on 33rd Street, N.W., in the District of Columbia. At about the same time a fuel truck owned by the Colonial Fuel Company and being operated by Paul Wolworth within the scope of his employment was proceeding in an easterly direction on Tennyson Street, approaching the intersection with 33rd Street. 33rd Street has two lanes running north and south. Tennyson Street has two lanes running east and west. The two streets intersect each other at approximately right angles. The intersection is controlled by stop signs on the northeast and southwest corners of Tennyson. A collision occurred within the intersection between decedent's motorcycle and defendant's truck. It was daylight, the weather clear and the roads dry.

 There were no eyewitnesses to the accident. Both drivers were alone, and the truck driver was neither deposed nor called to testify at trial. One of plaintiff's witnesses, a postman, testified that although he was between 200 and 300 feet from the intersection when he heard the collision, he did not see it happen.

 There were no skid marks by either vehicle at the scene of the accident. Photographs taken at the accident site by the police do not reveal the presence of skid marks and none were observed by witnesses.

 It is undisputed that the motorcycle struck the truck's right rear wheel in the southeast corner of the intersection. Photographs of the debris at the scene and the testimony of the postman establish this as the general area of the collision. A more precise location cannot be established in view of the fact that the motorcyclist did not survive the accident, the truck driver was neither deposed nor called to testify, and the deposition of the investigating officer was not offered into evidence. The postman testified that after hearing the crash he proceeded towards the intersection to investigate. He observed that part of the truck had already cleared the intersection and was at rest in the eastern portion of Tennyson Street. He saw the motorcycle lying against the south curb, five feet east of the eastern curb line of Tennyson, the body of the decedent positioned near it, and his helmet 90 to 100 feet into the eastern portion of Tennyson Street. The postman also testified that he watched the truck driver stand the motorcycle up and turn it around and then saw him drive his truck out of the intersection and park it 150 feet further east on Tennyson. The driver then returned to the accident site and began mopping up the oil spill from the motorcycle.

 Since both vehicles were moved before the police arrived, the photographs taken at the scene of the accident do not indicate the position of the vehicles immediately after impact. Although the photographs were received into evidence, they merely depict various views of the intersection and show the damage to the two vehicles. There are no photographs of the position of the decedent's body since he too had been removed from the scene when the police arrived.

 The measurements taken at the scene of the accident by the investigating officer were not offered into evidence. However, it should be noted that the only measurements which he took were the width of the two streets and the estimated point of collision. As indicated above, there were no skid marks to measure and the two vehicles had already been moved from the point of impact before the police arrived.

 Plaintiff presented no evidence of the condition of the brakes of either the truck or the motorcycle. Nor was any evidence introduced concerning the kind, condition or inflation of the tires of either vehicle. There was no testimony as to the type of street surface at the accident scene.

 Aside from the testimony of the postman, who did not witness the accident, and a neighbor, who also testified as to the position of the decedent's body after the accident, plaintiff's entire case as to defendant's liability rests exclusively upon the testimony of the expert witness.

 Plaintiff called as an expert witness on accident reconstruction a scientist and engineer specializing in mechanical engineering and related physical sciences dealing with automotive work. He testified that 17 months after the accident he visited the intersection of Tennyson and 33rd Streets where the accident occurred. There he took various sight-distance measurements. He then visited the Colonial Fuel Company where he inspected the truck which had been involved in the accident. No evidence was received concerning the use of the truck over the 17-month period. From these visits and inspections almost a year and a half after the accident, and primarily from a ...

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