Avant Trucking Co., Inc. v. Stallion
| Decision Date | 09 June 1981 |
| Docket Number | No. 62023,62023 |
| Citation | 159 Ga.App. 198,283 S.E.2d 7 |
| Parties | AVANT TRUCKING COMPANY, INC. v. STALLION et al. |
| Court | Georgia Court of Appeals |
Lawton Miller, Jr., Macon, for appellant.
Roger Mills, Decatur, for appellees.
Avant Trucking Co. brought an action against the Stallions, a father and son, for damages resulting from a collision between the Stallion tractor-trailer truck which was hauling logs and the Avant tractor-trailer truck, driven by Taylor, which was hauling 23-24 tons of gravel. Stallion claimed that Taylor was following behind his truck in the left lane of a four-lane divided highway and collided with a log on the back of the truck when he stopped to make a left turn. Taylor contended that he was driving in the right lane and the Stallion truck swung the logs about four feet into his lane when he began to make his turn. An eyewitness who was driving a second Avant truck and following Taylor by several car lengths testified that Taylor was driving in the right lane and that the Stallion truck did not completely stop before making the turn. The jury returned a verdict in favor of the Stallions and an appeal is brought by Avant from the denial of its motion for a judgment notwithstanding the verdict, and its motion for a new trial.
1. Appellant contends that the trial court erred in allowing a police officer to give his opinion as to how the collision occurred.
On direct examination, Officer Rogers testified that he was called to investigate the collision between the trucks which occurred at the intersection of Pio Nono Ave. and Guy Paine Rd. When he arrived, he found the Avant truck inside an animal hospital which was located on Pio Nono Ave. and log truck off to the side of the road on Guy Paine Rd. He testified that he was unable to determine what the parties were doing, in which lanes the vehicles had been traveling, and that there were no skid marks on the road. After counsel questioned him about an accident report he filed, the officer remembered that there were skid marks which began close to the inside of the right lane which went at an angle off the side of the road. He was unable to determine the speed of the vehicles or whether the log truck was moving at the time of the accident. He claimed, however, that he was informed by the log truck driver that he was going 5 m. p. h. when the accident occurred. Additional testimony included an estimate of the damages to the Avant truck, the width and condition of the highway, a posted speed limit of 50 m. p. h. in that area, the length of the logs, the presence of a red flag on the longest log, and that the turn signals on the log truck were in working order. He was asked if he was an accident reconstructionist and he stated that he was not.
On cross-examination, defense counsel questioned him as to his background and experience in investigating automobile accidents, what the drivers of the vehicles told him during his investigation, and his claim that there were no skid marks on the highway prior to impact which indicated to him that the Avant driver had not touched his brakes until impact. He stated that he believed that the damages sustained by the Avant truck were caused by a log striking and going through the left headlight because only one log on the right side of the log truck was damaged and his investigation showed that the logs were securely fastened on the truck. As he did not know the exact point of impact, counsel asked him if the angle of impact, based upon the two versions of the accident that he had been given were "... consistent with the left turn and striking or were they consistent with the truck being stopped and rear-ending?" He replied, "More of a rear-ending." (It is worth noting that on direct examination he testified that the log truck driver informed him he was traveling 5 m. p. h. at the time of the collision, on cross-examination, he testified that Stallion informed him he was stopped.)
Appellee's contention that the witness was qualified as an expert in the reconstruction of automobile accidents and could give opinion testimony based upon hearsay is not supported by the record. On direct examination, he claimed that he was not an expert in that field. In response to the plaintiff's objection, the court ruled, "My recollection is that this man was not qualified as an expert." Counsel then argued that the witness could give his opinion as a layman and the objection was overruled. We find that the court exercised its discretion and ruled that the witness was a layman. See Rouse v. Fussell, 106 Ga.App. 259, 126 S.E.2d 830 (1962).
Under Code § 38-1710: "The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." "[A]n expert's opinion may be based in part upon hearsay, and that when it is based thereon it goes to the weight and credibility of the testimony--not its admissibility." City of Atlanta v. McLucas, 125 Ga.App. 349, 187 S.E.2d 570 (1972). The rule as to lay witnesses is quite different. Code Ann. § 38-1708 provides: "Where the question under examination and to be decided by the...
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