complete brake failure after the right front wheel left the automobile.
The defense was, essentially, that (1) the right front wheel had separated from the vehicle as a result of the collision with the utility pole, rather than prior thereto, and (2) if any defective condition existed, it was due to substantial changes the vehicle had undergone subsequent to its manufacture. (The vehicle had been purchased used by John Cardullo when it had approximately 20,000 miles on the odometer.)
Plaintiffs advance three grounds for new trial.
1. The trial judge erred in charging the jury that the jury could draw an unfavorable inference from plaintiffs' failure to preserve the allegedly defective parts for trial.
The accident happened on June 8, 1969. More than a month later, on July 10, 1969, John Cardullo signed a "Proof of Loss" claim form, enabling him to receive payment from his insurance carrier for the collision damage to his vehicle. As a result of the execution of the Proof of Loss, ownership of the damaged vehicle passed to Cardullo's insurance carrier. On July 14, 1969 plaintiffs' counsel made arrangements for an expert witness (Mr. Pruyn) to inspect the damaged parts. Plaintiffs' expert witness did so on July 16, 1969. Notwithstanding that counsel had been engaged and that a lawsuit was a distinct possibility, nothing was done by plaintiffs to preserve the vehicle, or any of its parts, for trial. Plaintiffs contend that since ownership of the damaged vehicle had passed from John Cardullo shortly after the accident, there is no showing that the evidence in question was under the control of plaintiffs at trial.
It was left to the jury to determine whether, under the foregoing circumstances, John Cardullo was justified in disposing of the damaged vehicle to collect insurance and had offered a satisfactory explanation for the failure to preserve material evidence. The jury was properly instructed that if the explanation offered was unsatisfactory, the jury was permitted, but not required, to draw the inference that the evidence would have been unfavorable to plaintiffs' claim.
2. The trial judge erred in permitting an unlisted witness to testify.
Defendant called James Benjamin as a witness to testify concerning measurements of various distances at the accident scene. Mr. Benjamin was not listed as a witness in the pretrial memorandum of either party. Over the objection of plaintiffs' counsel, he was permitted to testify.
Local Rule 7(b) provides:
"Except for witnesses called on rebuttal or surrebuttal, a witness neither (1) named in any pre-trial memorandum or supplements thereto of any party, nor (2) authorized by the court in order to prevent manifest injustice, may not testify at the trial if timely objection is made by opposing counsel."