the danger that the machine might go out of control and that he risked injury or whether, for example, he thought he was only taking the risk that the loader would be difficult to operate. And, secondly, before the jury could resolve this issue, it needed to resolve the preliminary issue of the effect of Ransome's representations that the machine was safe to use. Ferraro v. Ford Motor Co., supra.
Ransome's motion for judgment n.o.v. will be denied.
Ransome's Motion for a New Trial
Ransome advances three grounds in support of its motion for a new trial. It contends first that the opinion testimony of plaintiff's three experts, Ballantine (N.T. 142-228, 397-401), Grosvenor (N.T. 235-346), and Baccini (N.T. 347-395) was erroneously admitted; and, second, that the Court's charge regarding assumption of risk was inaccurate and prejudicially emphasized plaintiff's theory of causation.
Ransome contends that there were three things wrong with the testimony of plaintiff's experts. First, it contends that there was no factual foundation laid which would have permitted Grosvenor or Ballantine to reconstruct the accident and give an opinion as to its cause. As pointed out above, however, the evidence was adequate to support the jury's finding of causation without recourse to expert opinions on the issue. It follows, therefore, that the experts who were privy to the same information likewise had an adequate basis for their opinions. The cases cited by Ransome in support of its argument, Andrews v. Jackson, 211 Pa. Super. 166, 235 A. 2d 452 (1967) and Rebmann v. Canning, 390 F.2d 71 (3d Cir. 1968), are both readily distinguishable. In Andrews the court found the plaintiff's expert, a police officer, incompetent to testify as to the condition of an automobile's brakes before an accident on the basis of his examination of the heavily damaged vehicle after the accident. The case certainly did not hold, as Ransome implies, that the expert must witness the accident in order to be able to testify about it. In Rebmann, the admission of testimony of an investigating police officer that an accident was caused by the failure of one of the parties to heed a stop sign was error. The essence of the court's holding was that the officer's testimony was improper because he had no way of knowing whether the party had disobeyed the command of the stop sign, and that though such testimony in other circumstances might be harmless, the testimony of a state trooper concerning a traffic violation would likely be given undue weight by the jury. In the present case, plaintiff's experts had access to considerably more facts than did the police officer in Rebmann.
Second, Ransome contends that the opinions were inadmissible because none of the experts supported his testimony with the necessary underlying facts. Ransome argues that, for example, Ballantine was unable to state positively that if the tie-rod ends had been replaced the accident would not have happened (N.T. 173), Grosvenor was unable to state that he actually knew whether the operator had difficulty steering the loader or whether the operator applied the brakes (N.T. 314-15), and Baccini could not state whether something did, in fact, deflect the wheels (N.T. 384). This argument boils down to the contention that experts in order to express their opinions about an accident must know exactly how it occurred. Were this the standard, expert testimony about an accident would rarely be admissible and where the standard was met such testimony would be unnecessary. All that can properly be required is that the expert have sufficient facts to enable him to reach a rational conclusion. As explained previously, the experts had sufficient facts from which they could reach such a conclusion. Kridler v. Ford Motor Co., 422 F.2d 1182, 1185 (3d Cir. 1970); Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A. 2d 231 (1968). To the extent the expert opinions were based on certain imponderables, the jury, of course, would properly accord them less weight.
Finally, Ransome contends that the expert opinions which incorporated such words as "may," "would tend" and "may have been" were insufficiently definite and were improperly admitted. The cases cited by Ransome do not support this proposition. One, Warden v. Lyons Transportation Lines, Inc., 432 Pa. 495, 248 A. 2d 313 (1968), holds that testimony by an expert qualified by words such as "possible" is, alone, insufficient to establish how an accident occurred, and the other, Laubach v. Haigh, 433 Pa. 487, 252 A. 2d 682 (1969), holds only that the trial court may properly exclude expert opinion testimony where the expert has insufficient facts on which to base an opinion. It is quite clear both in reason and law, VII Wigmore, Evidence § 1976, 3d ed. (1940); Bialek v. Pittsburgh Brewing Co., supra, that it is not necessary for an expert to express a positive opinion; the jury is entitled to consider an expert's assessment of the probabilities for whatever it is worth. Reading the testimony as a whole, I am satisfied that the experts' opinions were sufficiently firm for submission to the jury.
Next Ransome asserts that the court's charge on the doctrine of assumption of risk was defective. The essence of Ransome's complaint is that
"the court told the jury that even though the deceased willfully and knowingly used a machine with bad brakes, they could nevertheless find no assumption of risk in that respect if the deceased did not assume the risk of a tip-over." (Ransome Brief at 15.)
But the charge was somewhat broader than Ransome would suggest. The jury was instructed to determine, not whether the deceased assumed the risk of a tip-over, but rather whether the harm that occurred "was within the foreseeable ambit of the risk that he assumed." (N.T. 885.) In any event, Ransome apparently suggests that once it was established that the deceased knew about the bad brakes and steering, then, as a matter of law, he assumed the risk of this accident or at least serious bodily harm arising out of some sort of accident. This proposition is unacceptable. As discussed above, the crucial issue was this operator's state of mind. Plaintiff was entitled to have the jury resolve that issue, particularly in view of the possibility that the jury could find that the deceased was influenced by the statement of Ransome's representatives that the machine was safe to use.
Finally, Ransome contends that the court unduly stressed plaintiff's theory of causation when the court stated in charging on the sudden emergency doctrine:
"If you find, for example, that the sudden emergency was that he started back down the incline and couldn't stop the vehicle because of the failure of the brakes. * * *" (N.T. 843)