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Tritt v. Judd's Moving & Storage8/9/1990
WHITESIDE, Judge.
Plaintiffs-appellants ("appellants"), William R. Tritt, Jr., administrator of the estate of William Robert Tritt III, and Jason Tritt, appeal from a judgment of the Franklin County Common Pleas Court rendered in favor of defendant-appellee ("appellee"), Judd's Moving & Storage, Inc., on appellants' claims for wrongful death and personal injuries resulting from an automobile accident. Six assignments of error are raised, as follows:
"I. The trial court erred in permitting Defendant's accident reconstructionist to testify at trial as to opinions not disclosed during discovery and which were, in fact, based upon an out-of-court experiment conducted by the expert after the trial had commenced.
"II. The trial court erred in permitting Defendant's accident reconstructionist to testify at trial concerning an out-of-court experiment, because the circumstances of the experiment were so dissimilar to the circumstances of the accident in question as to prejudicially mislead the jury on an issue of material fact.
"III. The trial court erred in refusing to charge the jury with an instruction on common law negligence when such an instruction was dictated by the evidence and requested in writing by Plaintiffs.
"IV. The trial court erred in refusing to charge the jury with the definition of 'discernibility' enunciated by the Ohio Supreme Court in the case of McFadden v. Elmer C. Breuer Transp. Co. (1952), 156 Ohio St. 430 [46 O.O. 354, 103 N.E.2d 385], when such definition was necessary for the jury's determination of an ultimate issue in the case.
"V. The trial court erred in refusing to permit Plaintiffs to use a scale model of the accident scene during the testimony of Dr. Bernard Abrams, an expert witness on the subject of night vision, when Dr. Abrams testified that the use of the model would assist him in explaining his opinions to the jury.
"VI. The trial court erred in refusing to permit Dr. Bernard Abrams to testify as to whether the existence of reflective triangles would have enhanced the discernibility of Defendant's semi tractor under the conditions which existed at the time and place of the occurrence in question."
The facts involved are largely undisputed. On the morning of February 12, 1987, appellant Jason Tritt, while driving himself, his brother, William Tritt III, and two friends to high school, collided with the rear of appellee's truck. Appellee is a moving company, and on the date of the accident, had beespreparing to move the contents of a house located on the west side of State Route 605 in Delaware. Appellee had backed a yard tractor attached to an empty semitrailer into the driveway of the house to be moved, perpendicular to the southbound lane of Route 605, and had parked a Ford 9000 "cab over" semitractor, with no trailer attached, mostly in the northbound lane of Route 605. Apparently, the plan was to load the semitrailer with the house contents and then attach the loaded trailer to the Ford tractor for purposes of transporting the contents to their destination.
Appellee arrived with its two trucks at the house between 7:00 and 7:05 a.m. The Ford tractor was parked with its right wheels somewhat off the edge of the road, but with the rest of the tractor occupying Route 605. The morning was generally described by witnesses as dark and misty. Most witnesses who had driven by the accident scene either shortly before or after the collision testified that they were driving with their headlights on and their windshield wipers engaged, at least intermittently. Witnesses also testified that the Ford tractor had no flashers or lights engaged
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