determined by the accident reconstructionist in his experience in vehicle design those forces would be insufficient to call that that wire fitting to become i there when i was a parent for this argument and i correct your honor so the time of trial because of the fact that any testimony that could be found about an inspection of the light is found in mr allen's discovery deposition but if you're going ever hear that testimony well i don't know about that but their testimony that either by defendant or plaintiff both or neither would come in as to that light the trial did find genuine issues of material fact in the operation of the caterpillar funded motor specifically whether or not it was reasonable the appeal and the transcript even reflects the statements by judge l rod where he states i don't want to send either party to trial in this case with a hand tied behind their back well what i'd like to do is i'd like this to step it reasonably be in burke that it was working and operational i believe at reasonable inference i believe that it is a reasonable inference rather because we have got again it's a collection of circumstantial evidence which you have to look at the of the evidence and you can't just look at any specific specific single piece of evidence was there testimony from anyone to contradict the testimony that that joseph was driving was going seventy to the judge and he made certain rulings on that evidence here is and he did express on the record an intention to have this issue decided by this by this chord so that we could save the time and expense of having a trial before al by a jury then that issue could be brought up on appeal so we have an instance where there is a finding of a genuine issue of material facts of ultimately all genuine issues of material fact but we've now well well i'm i'm i want to ask you what justice palmer requested isn't it possible that the court in looking at the expert opinions could decide as a matter of law whether those expert opinions could even come in because let's see if they were without foundation i think we've got a procedural problem and what the court would have done in terms of a motion for summary judgment and the motion for summary judgment but there was no actual testing of this particular like wouldn't you argue there was still a question material fact as to whether or not the lights were at working based on the may testimony that was presented absolutely i mean we in this business we believe that the lay testimony the facts and circumstances all provided at least a genuine issue material fact about whether or not that light was working and met the expert opinion is essentially the cherry on top further explanation from someone who has experience with these types of machines  question of factual foundation and that's that goes to the weight of the testimony not the admissibility of the testimony so that that issue should have been dealt with in front of the jury in terms of of the defendants which were proximate cause of this list and we'll maintain that even without the mars like claim that there would still be a submissive claim that could be made on behalf of the plaintiff based upon the operation of this caterpillar that big whether or not it was reasonable to be driving in the fast lane of traffic at that speed also the other claims that all are submitted by the plaintiff here in terms of the failure to betis correct and i believe that he classified those claims as woulda coulda should and that it would have been nice if the secretary of state had included those requirements in the rules of the road but they're not there so that there's not an actual claim and we would respectfully disagree with that position on the basis that this is not a criminal or traffic proceed it yes the motor vehicle code can be a  was a duty on the part of county construction to undertake all of those additional safety precautions because of what they were doing they didn't need to travel on one hundred fifty ninth street they chose to do it for convenience  issue that we have here i think in this case the biggest problem with the motion for summary judgment seems to be defendants believe that if they prove bet joseph was negligent in any manner that they are fully that there is an issue that must be resolved in your favor or there is an absence of evidence supporting the man for not moving or in this case once we have done that the burden then shifts to the p did judge felt right essentially grant summary judgment on one issue only to you and then send the whole package here for us to look at the mars like the no and let me let me address it very clearly if you read the then what he does in the record of the proceedings in which i scolari ph sixteen and seventeen of my grief he goes through point by point of we call standards of what he's going through ok and i think in every single one of those is officer kirby him from the right will look at it if you're going to say that he he didn't do that do you think based on this record it could be recently argued that there are no questions there about this particular tractor travelling at about six six eight six ten am in the morning it time fall twilight when the  up and we have a tractor in the left lane of a four lane highway travelling at about twenty six miles per hour whether or not that was reasonable at that time and that the driver behind that see this tractor under the under the record here you're saying is a matter of law there's no questions for a jury to decide whether that those actions are reasonable i think justice you just ability to be able to avoid hitting that trip or in general whether a person driving at night on a street highway should by use or near here you don't see this object in front of it this is generally and clearly question the and there is no evidence to show even by the plaintiff's own mission that this trade there is not legal vehicle which judge all right i believe you'll recall pointed out that the only thing that comes up is if this model site is working its legal if it's not it's illegal everything else is the pendant on it because we do have the other whites we are miscible vehicle on the road at bedtime something twilight there's no six eighteen is is what the evidence would show the movement of the tractor yet the several hundred yards down the road from where it was feed store is only going to take a few minutes that's the simple math of going from zero to twenty six miles to get to the accident site there is no evidence and i don't believe it's ever been brought up by that point if i could be wrong but i don't think i am there's never been any argument that moment that the bars light was not working just being just to tell right that you can't prove that it wasn't working and you can't prove that it was work to me that's a statement that there's the question  it in inference inferences may be drawn on inference but they must come to some conclusion that is probable not just awesome and now we get in discussions of what we've  put forth in our brief of magic tech of how many of stirrups you have to have some competition evidence to show that this is a probability not just a possible let me give a sort of a silly analogy but think of it sort of makes sense rohrer five seven and a half as a probability of getting the best bomb against justice taylor is every bit a six four but it's not a let's assume for the sake of our discussion here it's not i've got a daily report which is a business record kept in the normal course of business and it records a fact all the way it's working fine that's one piece of evidence and that's  to make sure everything is working in the absence of it not working i will give him a ticket i don't give him a ticket furthermore he suggested there was looking testimony it seems like i was reading too different that deposition in your working ready after the accident because they're still on he got there so now you look at it we've got ellen before the accident we got multiple coming right after the accident we've got the three core workers coming by and i i believe  yellow lights so if we want to talk about inferences the only yellow lights out there would have been the mars life because the only thing the only other vehicles out there of which our experts actually says hazard upon a highway designed and customarily used to carry fast moving traffic even though you don't vehicle maybe approaching up the road from the opposite direction as to prevent the passing of the slow moving vehicle distances are deceptive at high speeds and mental calculations of braking distances and stopping riders are apt to prove faulty at such a or b so i think then we have the time of day we're called it's called twilight and yes it's clear that this caterpillar had a right to be on the road but i think your argument is boiling down to as long as they have a right to be on the road they are entitled to summary judgement operated as long as they have on the the triangular reflector there's no other questions they have whether it was reasonable to be doing this with this kind of light in this particular time of day with this other gentleman behind him you're saying there's just no reasonable inferences that can be drawn that this wasn't an accident waiting to happen oh well we'll get to it after that just as very clear  say yea or nay well there was testimony that it wasn't working eight hours later and there was sure there's no testimony from anyone that there are no one there was testimony from the officer who say he doesn't know if it was believe i've already he went through and when he gave all the bases and standards for what he was writing his ruling if you look and it's all cited and the last three they come up with these with these conclusions they must not have been up and under my question over and over again why do you say that why do you say they're white you say that and they basically come back and say well because the ac you know i think i just want to go to the actual transcript of the proceedings because i think there's a procedural problem here i think but the trout that it was he clearly felt that there were genuine issues  he starts out by saying there's questions  earlier he says he says you have to show this to the court that that there's a reasonable issue of material fact that they were very they were negligent and that i would deny them or for summary judgment you would go to a jury at last that the page where he says resolved so the issue is why what asa saw what asleep in the back of his cat will never be resolved in we could never get to any of those things because neither one of the fe but the existence of an accident will not lead to an inference of negligence we cite all the cases starting with m of those cases all will have to i think we're going to have to go through the i mean we can get a good portion of the transcript but i think we really have to go through the transcript and see and review the experts testimony very carefully to and that is a matter of walk there's absolutely no question of material fact about whether this vehicle being in the left hand lane at this time day with the lighting as it was really a twenty six and a half miles around whether it was reasonable or not if any if he said that if that that's going on there's there's no testimony no competent testimony i mean this is about whether to tell wright said these are possibilities i mean he did say that there are possibilities but not as he said everything was circumstantial and self but is it really is is that how we're going to review this we look at it to know about and we determine whether there is some testimony that raises a question of material fact about whether the vehicle i don't so i mean it that it seems to me he said there were multiple issues but because i can't resolve this one issue i'm going to let people work do it so you don't have to try the case without a ruling in advance for me which i can't decide appendix so i don't think that that was considered but even if it was going to be considered a wholesale fashion with the motion for summary judgment we do maintain that there was a procedural here or there we did not have the opportunity to think i mean where do you have an expert even saying that i tested this and i know didn't both of them concede that eight didn't know whether or not the my flight was operating or not reading and their opinions were based on their opinion that if it wasn't working then i can say this i believe it was all that they did so the big could say to reason the degree of engineering survey that it was not working based upon the entirety of their analysis but what was so where is this where is this testimony can come from for the expert to base his her well again we've got the issue of the more cyborg also got the slower operation of the vehicle and there's a little older recognizes will say we have to establish everything to a certainty which i would suggest that that is not a requirement but that they want to be able to establish the proximate cause being solely on mr stillwell based on possibility he said oh there are so many