Adams v. Smith

• Decision Date: 03 April 1972
• Docket Number: No. 8242,8242
• Citation: 479 S.W.2d 390
• Parties: Gordon J. ADAMS, Connie Geiss, et al., Appellants, v. Duane A. SMITH, Administrator of the Estate of Este Lee Smith, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 390

479 S.W.2d 390

Gordon J. ADAMS, Connie Geiss, et al., Appellants, v. Duane A. SMITH, Administrator of the Estate of Este Lee

Smith, Deceased, Appellee.

No. 8242.

Court of Civil Appeals of Texas,

Amarillo.

April 3, 1972.

Rehearing Denied May 1, 1972.

Kolander, Templeton & Hamilton, Robert L. Templeton, Amarillo, for appellants.

Culton, Morgan, Britain & White, Maston C. Courtney, Amarillo, for appellee.

ELLIS, Chief Justice.

This is an appeal from a judgment rendered in an automobile collision case that the plaintiffs-appellants take nothing in their respective actions for (1) wrongful death and (2) personal injury against the defendant-appellee. Affirmed.

The collision occurred at about 4:45 o'clock in the afternoon of July 1, 1968, on U.S. Highway 87--287, approximately 14 1/2 miles north of Amarillo, Texas, and about 1 1/2 or 2 miles north of the Canadian River Bridge. This was a paved north-south highway with 3 lanes from the Canadian River Bridge to a point some distance north of the scene of the accident. The two easterly lanes were designated for northbound traffic, while the most westerly of the 3 lanes was provided for southbound traffic. A painted double yellow stripe served to separate the two northbound lanes from the southbound lane. The terrain in the general area lying north of the Canadian River is characterized by a series of small rolling hills. Two automobiles were involved in the collision, a southbound Chevrolet, driven by Mrs. Melinda Ewing, and a northbound Cadillac, driven by Mrs. Este Lee Smith. Two persons were in the Cadillac and six persons were in the Chevrolet. It was raining and the highway was slick. The automobiles collided on the wet highway with great force, and of the eight persons in the two automobiles, all were killed in the collision except one, Connie Geiss, a minor child, who was a passenger in the Chevrolet. The impact of the collision was of such magnitude that the Chevrolet automobile was completely severed into two pieces, leaving the front half of the wreckage near the Cadillac and the rear half some 30 or 40 feet away near the center portion of the highway. Suit was brought against the Estate of Mrs. Este Lee Smith, the deceased driver of the Cadillac, on behalf of Connie Geiss, a minor, and by Gordon J. Adams, the surviving husband of Mrs. Elda N. Adams, one of the passengers who was killed while riding in the Chevrolet at the time of the collision.

Various acts of negligence on the part of the deceased driver of the Cadillac were alleged by the plaintiffs. There were four witnesses whose testimony was significant in this case. These included one eyewitness, James M. White, and three expert witnesses, Dr. Raymond M. Meyers, a physics professor at Texas Tech University, Glenn Clements, a Texas State Highway Patrolman and Carl T. Abrahamson, Traffic Engineer for the City of Amarillo, Texas. The trial was before a jury. The jury found no liability against the driver of the Cadillac and found that the failure of the driver of the Chevrolet to keep her vehicle within the portion of the roadway provided for southbound traffic was the sole proximate cause of the collision in question. Judgment was entered that plaintiffs take nothing by their suit, and from such judgment this appeal has been brought.

The appellants have predicated their appeal upon eleven points of error, and the appellee has responded with five counterpoints. The appellants' points of error are grouped into three categories in which they contend that the court erred in (1) admitting opinion testimony of Texas Highway Patrolman, Glenn Clements, concerning the speed of the Cadillac automobile; (2) admitting opinion testimony of Carl T. Abrahamson concerning the speed of the Cadillac automobile; and (3) refusing to submit appellants' requested special issues regarding specific alleged acts of negligence on the part of the driver of the Cadillac automobile.

The appellants called two of the above named witnesses, James M. White, the sole surviving eyewitness to the collision, and Dr. Raymond W. Meyers, the physics professor.

The significant portions of Mr. White's testimony are hereinafter set out. He was travelling in a southerly direction in a truck some distance behind the Chevrolet automobile when the collision occurred . The Chevrolet had passed him a short time before the collision. He testified that the Chevrolet automobile went into a 'side ways skid' when it was travelling about 55 miles per hour. He further stated that the skid 'started at the bottom of the hill going up and stayed in it all of the way up; not a real radical angle.' His testimony was that the front end of the Chevrolet did not make a complete spin before it was hit, and during the greater portion of the skid, the Chevrolet was facing southeasterly and veering over into the other lanes. He estimated that the Chevrolet travelled in the skidding position going gradually up the hill in a southeasterly direction for a distance of about 500 feet to the point of collision with the Cadillac. He testified that the collision occurred in the easternmost lane of the northbound traffic lanes just after the Cadillac topped the hill as it came from the south. Upon being asked how long he had to observe the Cadillac after it came into view over the hill and before the automobiles collided, he replied that it was the length of time it took him to utter the spontaneous statement made to the other occupant of his vehicle (Mr. Garrett Jewett who was deceased at the time of the trial), 'My God, they're going to hit.' Mr. White further testified that when the two automobiles collided 'both of them went straight up in the air, and came directly back down. . . .' Also, he stated that the Cadillac was in the center of the far east lane and he didn't see it change directions in any way. He was unable to tell whether the Cadillac reduced its speed from the time he first saw it until the collision. He was unable to tell how fast either automobile was travelling at the time of the collision. He stated that the Chevrolet left no skid marks, and he was unable to say whether the speed of the Chevrolet was reduced by the skid up the side of the hill. Also, he noticed no skid marks, 'gouge' marks or smudge marks on the pavement. Further, he testified that neither vehicle went careening off after the impact.

Since Mr. White was unable to determine the speed of either vehicle at the time of the collision, expert witnesses were called by the respective parties. A person is regarded as an expert witness when the subject of inquiry is one of science or skill about which the purported expert, by reason of his particular training, study and experience has skill and knowledge about such subject under investigation which jurors generally would not be presumed to possess. International & G.N.R. Co. v. Mills, 34 Tex.Civ.App. 127, 78 S.W. 11 (1903, writ ref'd). Since such a witness would be expected to be more knowledgeable than the average layman in the particular area of inquiry involved, it is anticipated that such person's opinion should be of some assistance to the trier of the facts. Mesa Trucking Company v. King, 376 S.W.2d 863 (Tex.Civ.App.--Amarillo 1964, writ ref'd n.r.e.). It is within the discretion of the trial court to determine whether a particular witness is qualified to testify as an expert, and it must be shown that such discretion has been abused before the trial court's determination will be disturbed on appeal. Mesa Trucking Company v. King, supra; Bolstad v. Egleson, 326 S.W.2d 506(Tex.Civ.App.--Houston 1959, writ ref'd n.r.e); Kettle v. Smircich, 415 S.W.2d 935 (Tex.Civ.App.--Corpus Christi 1967, no writ), Also, it is well settled that 'opinion testimony does not establish any material fact as a matter of law.' Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 346. It is but evidentiary and not binding upon the trier of the facts. Broussard v. Moon, 431 S.W .2d 534 (Tex.Sup.1968); McIlroy v. Wagley, 437 S.W.2d 5 (Tex.Civ.App .--Corpus Christi 1968, writ ref'd n.r.e.); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945).

The appellants called as an expert witness Dr. Raymond W. Meyers, a physics professor from Texas Tech University. In his professional career and background he had considerable experience in reconstructing accidents, including automobile collisions. Since there were no skid marks and the location of the point of impact of the vehicles was not established, he sought to determine the amount of force required to cause the physical damage to the two automobiles. In short, Dr. Meyers estimated it would take a combined speed of 110 miles per hour to create such a force. Also he concluded that the only way the Chevrolet automobile, if it were travelling 55 miles per hour before it went into the skid, could have skidded 500 feet on the wet pavement was by a hydroplaning effect. On this basis, he estimated that even with the hydroplaning effect, the Chevrolet automobile would have been travelling at a very low rate of speed at the time of the impact, and that the greater portion of the 'combined' 110 miles per hour should be assigned to the speed of the Cadillac. The above conclusion was made without consideration of any assumption (based upon the testimony of the eyewitness) that upon collision, the two vehicles went straight up in the air and then came right back down. On cross examination, Dr. Meyers admitted that if he were to assume that when the two vehicles collided, they went straight up into the air and back down, if the vehicles weighed approximately the same, they would be travelling at about the same rate of speed at the time of the impact.

One of the witnesses called by the appellee was Glenn Clements, a Texas State Highway Patrolman who had four years experience in the investigation and reconstruction of accidents. He had personally assisted in the investigation at the...