B. & J. Byers Trucking, Inc. v. Robinson

• Decision Date: 27 February 1984
• Docket Number: No. 83-262,83-262
• Citation: B. & J. Byers Trucking, Inc. v. Robinson, 665 S.W.2d 258, 281 Ark. 442 (Ark. 1984)
• Parties: B. & J. BYERS TRUCKING, INC., Appellant, v. F. Eugene ROBINSON, Appellee.
• Court: Arkansas Supreme Court

Page 258

665 S.W.2d 258

281 Ark. 442

B. & J. BYERS TRUCKING, INC., Appellant, v. F. Eugene ROBINSON, Appellee.

No. 83-262.

Supreme Court of Arkansas.

Feb. 27, 1984.

Rehearing Denied March 26, 1984.

Butler, Hicky, Hicky & Routon, Ltd. by Preston G. Hicky, Forrest City, for appellant.

Kinney, Easley & Kinney by B. Michael Easley, Forrest City, for appellee.

GEORGE ROSE SMITH, Justice.

On a clear July afternoon in 1980 the plaintiff, Eugene Robinson, was injured when his car was struck from behind by a large tractor-trailer rig being driven by the defendant trucking company's employee. The jury's apportionment of 75% of the total negligence to the truckdriver and 25% to the plaintiff settled the principal issue of fact: whether the collision was caused by the negligence of either or both of the drivers. The defendant, in appealing from the net judgment for $150,000 for the plaintiff, argues three points relating to the evidence and one to asserted misconduct by two jurors. None of the arguments has merit.

It is first argued that because the plaintiff's attorney had signed but not sworn to a denial in answer to a defense request for an admission, the court should have instructed the jury that the plaintiff had admitted fault in the accident. The request, however, had asked not the plaintiff himself but B. Michael Easley, "Attorney for Plaintiff, F. Eugene Robinson," to admit that Robinson was at fault in the accident. Even if we assume, without holding, that the request related to an issue of fact within ARCP Rule 36(a), the rule nevertheless contemplates that the request be directed to the adverse party, to be answered by that party. The trial judge properly rejected the defendant's attempt to require opposing counsel to respond to the request.

Second, a State police officer, Dennis Hensley, investigated the accident and was called as a witness by the plaintiff. On cross examination the officer was asked by defense counsel: "Did you tell me you thought they were about equally at fault?" After a detailed hearing in chambers the judge properly sustained the plaintiff's objection to the question. Officer Henley admitted during that hearing that he had had no training in reconstructing accidents, that he had never attempted to reconstruct one, that he had talked only to the truckdriver and not to Robinson, who had been taken away from the scene in an ambulance, and that he had not considered the weight of the vehicles, their speed, or the grade of the hill. The officer's proffered conclusion of equal fault as between the drivers was essentially based only on his expressed belief that Robinson had a right to turn to his left and the truckdriver had a right to try to pass a vehicle ahead of his own vehicle. There was no real basis for the witness to testify that the drivers were equally at fault, even assuming the admissibility of such an opinion.

Third, the plaintiff called Officer Kenneth Rogers to testify, as an expert, that the truckdriver's speed when he applied his brakes must have been 59 miles an hour or more. Counsel first qualified the officer as an expert, by eliciting his testimony that he had studied the investigation and reconstruction of accidents for over 800 hours at various specified schools and universities, that he had taught the subject for over four years and was then teaching it at Arkansas State University, that he had reconstructed more than 150 accidents and testified a number of times in courts, and that he had written extensively on the subject. After the witness had been so qualified, but before he proceeded with his actual testimony, defense counsel made his only objection, "to Trooper Rogers's testimony in the record as to reconstruction. Under the Arkansas case law, it is not permitted." The objection was overruled and not renewed.

Officer Rogers testified that he had seen Officer Hensley's accident report and diagram (which presumably showed the truck's skid marks to have been continuous for 99 feet to the point of impact and 170 feet beyond that, as Hensley testified), had read the depositions of the two drivers, had visited the scene three times, had determined the grade of the hill, had examined the pavement, and had ascertained the weight of the tractor-trailer and its minimum legal braking requirements. The officer explained how he calculated the friction coefficient and finally estimated that the truck had been traveling at least 59 miles an hour rather than the truckdriver's own estimate of 40 to 45.

Counsel's objection, that Arkansas case law does not permit any reconstruction of an accident, was not accurate. In Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), we adhered to our earlier position that attempts to reconstruct traffic accidents by means of expert testimony "are viewed with disfavor," but we nevertheless held that expert testimony was necessary in that case for an understanding by the jurors of the physical dynamics and causal relationships involved in the accident. Again, in Wright v. Flagg, 256 Ark. 495, 508 S.W.2d 742 (1974), we sustained the trial judge's exclusion of a witness's faulty attempt to reconstruct the accident but we recognized the existence of exceptions to the broad exclusion of such testimony.

The determination of an expert witness's qualifications is a matter lying within the trial judge's discretion, to be upheld on appeal absent an abuse of that discretion. Parker v. State; 268 Ark. 441, 597 S.W.2d 586 (1980). With regard to accident reconstruction, the important consideration is whether the situation is beyond the jurors' ability to understand the facts and draw their own conclusions. Woodward and Wright, supra. Similarly, under Uniform Evidence Rule 702 the question is whether specialized knowledge will assist the jury to understand the evidence or determine a fact issue. Here Officer Rogers explained to the jury how the facts enabled him to make the computations necessary to his estimate of the truck's speed. The jury could not have made such a computation. In view of our case law the trial judge correctly overruled an objection that was made before the testimony had been heard, and since the officer's estimate proved to be admissible, it is understandable why the objection was not renewed.

Fourth, the appellant charges two jurors with misconduct. As the jury was being selected the judge asked if any of the panelists had ever been represented by the plaintiff's lawyer, Michael Easley, or by Easley's partners, Knox and Baird Kinney. No juror responded. After the trial the appellant moved for a new trial, attaching the following affidavit by an attorney to show that juror Peggy Joyce Duke had been represented by the plaintiff's attorneys about two months before the trial:

I represented Mike Zuber in connection with the sale of his house ... to Prince F. Duke and Peggy Joyce Duke. The sale was closed in late April of 1983. The Dukes were represented by Kinney, Easley and Kinney. Both Mr. and Mrs. Duke were present at closing.

There was also proof that Mrs. Duke's husband was being represented by the Kinney firm in a pending matter in which Duke sought abatement of child support for two children by a former wife, because the children had reached their majority.

The appellant's brief quotes from our opinion in Hot Springs St. Ry. Co. v. Adams, 216 Ark. 506, 226 S.W.2d 354 (1950), where a juror deliberately concealed the fact that he was then being represented by one of the plaintiff's attorneys. On that basis we reversed the judgment, saying:

The appellant was entitled to the information sought, as a basis for a peremptory challenge if not as a...