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October 13, 1981

Ray ADKINS, et al.
Donald DIRICKSON, et al. Donald DIRICKSON, et al. v. Ray ADKINS, et al.

The opinion of the court was delivered by: GILES


Before me is defendants' motion for a new trial. For the reasons which follow the motion will be denied.


 Oncoming tractor trailers sideswiped in the dark of night. Neither driver recalled the impact. Nobody else witnessed the accident. The collision occurred on a portion of Interstate Route 78 ("I-78") which, because of construction, was a two-lane undivided highway. All traffic was routed onto the westbound section of the road, with westbound traffic restricted to what usually would be the outside driving lane, and eastbound traffic in the usual inside passing lane. Plaintiff *fn1" had been driving a box-type tractor-trailer westward in the outside lane. Defendant, who was driving east in a tanker tractor-trailer, loaded with a liquid, had been traveling in a four-lane section of I-78 and then went through a cross-over onto the two-lane section. The accident occurred approximately two-tenths of a mile after defendant made the cross-over. After trial, the jury found for plaintiffs. Defendants moved for a new trial.

 Defendants raise four grounds for a new trial: (A) admission of evidence derived from a tachograph as partial proof of the speed of defendants' truck; (B) preclusion of defense counsel's proposed method of attempting to recall or incorporate trial and deposition testimony by other witnesses; (C) refusal of a point for charge on Interstate Commerce Regulations, which were not introduced at trial; and (D) a verdict allegedly against the weight of the evidence.

 To prevail on their motion, defendants must show not only that there was error, but also that any error was not harmless. See Fed.R.Civ.Pro. 61.

 A. Tachograph Evidence

 The tachograph in question in this suit is a speed measuring and recording device. In essence, it is a recording speedometer. It consists of an ordinary speedometer connected to a recording device which charts on a circular graph, speed, distance travelled, and engine use. *fn2" As part of plaintiffs' case-in-chief, a tachograph chart was introduced, and an expert interpreted the chart as recording the speed of defendants' truck at impact as 41-42 miles per hour. Notes of Testimony, 3.80 (hereinafter cited as N.T.). That expert, however, could not vouch that the tachograph had recorded accurately. Id. 3.98, 3.108-.110. Defendant timely objected to this testimony and asked that it be stricken. Id. 3.73, 3.98. The objection was overruled. Defendants now raise this ruling as ground for a new trial.

 Citing Villegas v. Bryson, 16 Ariz.App. 456, 494 P.2d 61 (1972), they argue that the proponent of tachograph evidence must lay a foundation by showing the accuracy of the particular tachograph.

 At trial, defendants, characterizing the tachograph evidence as "scientific," argued that the proponent must show (1) general scientific acceptance, and (2) accuracy of the particular device. See J. Wigmore, supra note 2, at 450. See generally J. Richardson, supra note 2, § 9.2. In connection with this argument, it is important to note two points. First, the general scientific acceptance of the tachograph is not at issue in this case. If it were, I would take judicial notice of its acceptance. Second, if one accepts the rule proffered by defendants concerning the foundation required for "scientific" proof, then characterizing evidence as "scientific" puts the rabbit into the hat. Thus, the question whether evidence is "scientific" can be thought of as a different aspect of the question what foundation is required. *fn3"

 Not only do plaintiffs challenge the proposition that the proponent of the use of the device must lay a foundation for its accuracy, but they also submit that there was indeed evidence of accuracy presented at the trial. These arguments, therefore, raise three questions for the court: (1) whether accuracy was a necessary foundation in this case; (2) if so, whether the foundation was laid; and (3) if a proper foundation did not exist, whether the error was harmless.

 1. Accuracy As Part of Foundation

 Is a showing of accuracy a prerequisite to introducing tachograph evidence, or does accuracy vel non merely go to the weight of the evidence? See, e.g., McCormick, supra note 2, § 210, at 515; J. Wigmore, supra note 2, § 220, at 450. The few jurisdictions which have reached this question directly have held that the foundation for introduction of tachograph testimony must include a showing of "the accuracy of the particular tachograph which made the chart." Villegas v. Bryson, 16 Ariz.App. 456, 458, 494 P.2d 61, 63 (1972); see Bell v. Kroger, 230 Ark. 384, 386-87, 323 S.W.2d 424, 426 (1959); Great Coastal Express, Inc. v. Schruefer, 34 Md.App. 706, 714-16, 369 A.2d 118, 124-25 (1977) (quoting trial judge *fn4" ); Thompson v. Chicago & Eastern Illinois Railroad, 32 Ill.App.2d 397, 405, 178 N.E.2d 151, 155 (1961); Jones, supra note 2, § 15:16, at 46; McCormick, supra note 2, § 210, at 516; Conrad, supra note 2, at 297. Contra, Wigmore, supra note 2, § 665a, at 917; but see Hall v. Dexter Gas Co., 277 Ala. 360, 365, 170 So.2d 796, 800-01 (1964) (admissible on showing that it was ordinary business record); but cf. NLRB v. Pacific Intermountain Express Co., 228 F.2d 170, 172 (8th Cir. 1955) (NLRB proceeding), cert. denied, 351 U.S. 952, 76 S. Ct. 850, 100 L. Ed. 1476 (1956); People v. Dusing, 5 N.Y.2d 126, 128, 155 N.E.2d 393, 394, 181 N.Y.S.2d 493, 495 (1959); ...

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