Opinion
Dec. 26, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Kripke, Carrigan & Bragg, P.C., Kenneth N. Kripke, Denver, for plaintiff-appellee.
Montgomery, Little, Young & Ogilvie, P.C., David C. Little, Denver, for defendant-appellant.
SMITH, Judge.
Plaintiff, William West, commenced this action against Torbuc Corporation, doing business as Four Seasons Sports Center, seeking recovery for personal injuries received in a motorcycle accident. Relief was based solely on the theory of strict liability. Defendant appeals from a judgment entered on a jury verdict granting plaintiff damages in the amount of $8,500. We reverse and remand for a new trial.
The following facts are not in dispute. In May, 1969, plaintiff West went to defendant's place of business for the purpose of purchasing a motorcycle. Following preliminary negotiations, plaintiff was given permission to test drive one of defendant's motorcycles. During the test drive, plaintiff experienced difficulty with the machine, and, in an attempt to avoid entering a busy intersection, he 'laid the bike over' by jumping off and letting the bike come to rest on the pavement. Plaintiff was injured in this activity.
Plaintiff's theory of recovery is predicated on the alleged fact that, just prior to the accident, the throttle mechanism would not shut down, that this mechanical failure was due to a defect in the throttle cable running from the handlebar to the carburetor, and that plaintiff's injuries were proximately caused by this defect.
I
Plaintiff sought to prove the existence of a specific defect in the throttle cable by introducing the cable into evidence, and by eliciting expert opinion testimony regarding the manner in which the cable malfunctioned. The expert testimony was based on an examination of the throttle cable at the time of the trial, three years after the accident. Defendant contends that the cable and the expert testimony were improperly admitted into evidence because there was no proof that the cable was in the same condition at the time of the examination as it was at the time of the accident. We agree.
Articles or objects which relate to or tend to explain the issues or form a part of the transaction in controversy are admissible in evidence only when identified and shown to be in substantially the same condition as at the time of the occurrence. Witt Ice & Gas Co. v. Bedway, 72 Ariz. 152, 231 P.2d 952; Jasper Coca Cola Bottling Co. v. Breed, 40 Ala.App. 449, 115 So.2d 126. In the present case, plaintiff's expert witness testified that the cable was in a damaged condition at the time of the examination. The cable was not examined until three years after the accident, during which time the cable remained on the bike and was operated by two different owners. Absent evidence that the cable was in a condition similar to that at the time of the accident, it was error to admit the cable and the expert testimony into evidence.
In light of our disposition of this case, we need not address defendant's other assertions of error.
Judgment reversed and cause remanded for a new trial.
SILVERSTEIN, C.J., and RULAND, J., concur.