Anderson v. Lippes

• Decision Date: 26 June 1969
• Docket Number: Docket No. 6130,No. 2,2
• Citation: 170 N.W.2d 908,18 Mich.App. 281
• Parties: Jacqueline ANDERSON, by her next friend, Velma P. Anderson and Kenneth Anderson, Plaintiffs-Appellees, v. Richard James LIPPES and Thomas Lippes, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 908

170 N.W.2d 908

18 Mich.App. 281

Jacqueline ANDERSON, by her next friend, Velma P. Anderson and Kenneth Anderson, Plaintiffs-Appellees, v. Richard James LIPPES and Thomas Lippes, Defendants-Appellants.

Docket No. 6130.

Court of Appeals of Michigan, Division No. 2.

June 26, 1969.

Released for Publication Oct. 9, 1969.

Richard W. Ryan, Burke, Burke, Ryan & Rennell, Ann Arbor, for defendants-appellants.

DeVine & DeVine, Ann Arbor, for plaintiffs-appellees.

Before LESINSKI, C.J., and QUINN and DANHOF, JJ.

LESINSKI, Chief Judge.

This is an automobile negligence case in which plaintiff Jacqueline Anderson asserted that defendant Richard Lippes was guilty of wilful and wanton misconduct and sought damages for injuries received while a guest in an automobile driven by him. The injury occurred when the automobile driven by defendant failed to negotiate a curve, left the road, began to roll over, struck a utility pole, then righted itself and eventually stopped in a field. After a jury trial in Washtenaw county circuit court, plaintiffs were granted a verdict of $79,200. Defendants appeal.

Defendants first contend the trial court erred in admitting into evidence the opinion testimony of plaintiffs' expert as to the speed of Richard Lippes' automobile at the time of the accident. Defendants contest both the expert's qualifications and the basis for the expert's opinion, in contending that prejudicial error occurred.

In determining the admissibility of opinion testimony of a witness, the question of whether the witness is qualified as an expert is left for the discretion of the trial judge, and his decision is to be interfered with only where an abuse of discretion is demonstrated. Coles v. Galloway (1967), 7 Mich.App. 93, 151 N.W.2d 229. In the instant case, testimony indicated that the witness was a consulting engineer, had been an engineer since 1920, had degrees in electrical and mechanical engineering with postgraduate work in civil engineering, had been employed as a traffic engineer in various large municipalities, had written articles regarding the visibility of traffic signs and the effects of collisions on motor vehicles, had previously given expert opinions regarding the causes of accidents and had made a study of the damage done to automobiles in accidents where the speed was known. Based upon this background, the trial court found the witness qualified as an expert. We agree. The trial court did not abuse its discretion in determining that the witness was sufficiently qualified to be interrogated as an expert in the instant case.

Defendants further attack the admissibility of the expert's opinion testimony, claiming there was insufficient foundation for the expert's conclusion that Richard Lippes' automobile was traveling at least 55 miles per hour at the time of the accident. Our research discloses that court decisions are divided regarding the admissibility of expert or opinion evidence as to speed based upon the appearance or condition of a motor vehicle after an accident, it often being impossible to determine whether court rejection of testimony occurs as a matter of principle, or because of the facts of the particular case. See 93 A.L.R.2d 287 and Supplement. However, in Michigan the Supreme Court stated in Dudek v. Popp (1964), 373 Mich. 300, 307, 129 N.W.2d 393, 396:

'We align ourselves with the authorities which hold that one properly qualified in accident investigative background may testify either from personal observation or From properly authenticated and admitted exhibits that, in his opinion, certain marks are skid marks and that they were made by a given motor vehicle and his reasons therefor. On the same basis and for the same reasons, He may point out in his opinion the point of impact.' (Emphasis supplied.) ¹

Similarly, this Court in Synder v. N.Y.C. Transport Co. (1966), 4 Mich.App. 38, 143 N.W.2d 791, held that an expert may give his opinion, based upon the length of skid marks, as to the speed of a motor vehicle involved in an accident. Michigan courts, therefore, have adopted the principle that under proper factual circumstances, an expert's opinion testimony as to speed is admissible although based solely upon conditions existing after the accident.

In the instant case, a review of the transcript indicates that plaintiffs' expert was aware of the type of automobile involved, its weight, the distance the automobile traveled off the road before colliding with a pole, the manner in which the automobile collided with the pole, the additional distance the automobile traveled after collision with the pole, and had observed five photographs of the damaged vehicle. While the expert estimated that Richard Lippes was traveling at least 55 miles per hour, he admitted an error factor of one to five miles per hour by reason of each of nine factors. The defendant himself admitted driving up to 50 miles per hour, although the posted speed limit on the road was 45 miles per hour, and the posted speed limit for the curve on which the accident occurred was 30 miles per hour. Based upon these particular facts, we cannot conclude that reversible error was committed in the admission of the expert's conclusion as to the speed of Richard Lippes' automobile. Even if the testimony should not have been admitted, its consideration by the jury was not prejudicial because both the defendant's and the expert's estimates of defendant's speed were in excess of the speed limit on the road and because defendant's admission of traveling 50 miles per hour was a close approximation of the speed estimated by plaintiffs' expert. See Maul v. Filimon (Mo.App.1958), 315 S.W.2d 859.

Defendants next contend that the trial court erred in admitting into evidence a photograph of the injuries to plaintiff's face which was taken immediately after plaintiff arrived at the hospital following the accident. The admitted photograph was one of various photographs offered into evidence by plaintiff in order to assist her plastic surgeon in showing the extent of plaintiff's facial injuries and in explaining the corrective treatment employed. Defendants objected to the admission of any of these photographs, claiming that they were highly prejudicial and inflammatory. Over this objection, the trial court admitted one photograph and permitted the plastic surgeon to testify while projecting the photograph upon a screen in the courtroom. It is to the admission of this one photograph that defendants object.

This Court has recently considered the propriety of the admission of photographs into evidence in People v. Turner (1969), 17 Mich.App. 123, 169 N.W.2d 330; People v. Brannon (1968), 14 Mich.App. 690, 165 N.W.2d 903; and People v. Rogers (1968), 14 Mich.App. 207, 165 N.W.2d 337. ² In each of these cases this Court recognized that the admissibility of photographs is for the sound discretion of the trial court. Concededly the photographs must be accurate and have probative value. Moreover, these three cases have acknowledged the applicability of the test provided in People v. Becker (1942), 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171, that the photograph, to be admissible, must be helpful in throwing light upon some material point in issue.

In application of these tests to the instant case, one issue before the court was the extent of the injuries and the amount of pain and suffering caused to plaintiff. Another issue concerned recovery for the medical expenses incurred in treating plaintiff for her injuries. Both of these issues required a detailed explanation in order that a jury might properly assess the amount of damages to be awarded plaintiff. The photograph was necessary for a proper description of the injuries and of the treatment employed by the plastic surgeon. Therefore, the photograph in the instant case did throw light upon material issues of fact, and had probative value. Since the defendants admitted the accuracy of the photograph, no issue of accuracy is involved in this appeal.

In People v. Jenkins (1968), 10 Mich.App. 257, 264, 159 N.W.2d 225, 229, this Court recognized that:

'A photograph may be admitted if its value as evidence outweighs its possible prejudicial effect, or may be excluded if its prejudicial effect may well outweigh its probative value.'

Similarly, in Turner, supra, we stated that:

'Photographic evidence relevant to a material point in issue may, nevertheless, be inadmissible if its possible prejudicial effect outweighs its probative value.'

In considering defendants' claim that the admitted photograph in inflamatory, we have closely examined the exhibit to determine whether it was prejudicial in nature. The exhibit admittedly is gruesome, depicting as it does the plaintiff's face covered with blood and a mass of small and large and jagged lacerations, her nose smashed and almost completely torn from its position. However, we do not feel the trial court erred in exercising his discretion to admit the exhibit. We are not convinced that the photograph's prejudicial effect, if any, outweighed its probative value in informing the jury of the extent and nature of plaintiff's injuries and in explaining the corrective treatment necessitated.

Defendants' third contention is that the evidence taken in the light most favorable to plaintiff was insufficient to support a verdict of wilful and wanton misconduct. Under Michigan's guest passenger statute, C.L.S.1961, § 257.401 (Stat.Ann.1968 Rev. § 9.2101):

'No person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton...