Bernal v. Bernhardt, No. 53865

• Court: United States State Supreme Court of Iowa
• Writing for the Court: STUART; MOORE; LARSON; MASON; RAWLINGS; LARSON
• Citation: 180 N.W.2d 437
• Decision Date: 13 October 1970
• Docket Number: No. 53865
• Parties: Celestino BERNAL, Appellee, v. Roger Eugene BERNHARDT, Appellant.

Page 437

180 N.W.2d 437 Celestino BERNAL, Appellee,
v.
Roger Eugene BERNHARDT, Appellant. No. 53865. Supreme Court of Iowa. Oct. 13, 1970.

Page 438

Westfall, Laird, Burington, Bovard & Heiny, Mason City, for appellant.

Fitzgibbons & Fitzgibbons, Estherville, for appellee.

STUART, Justice.

A pedestrian who was struck by defendant's automobile as he was crossing State Highway 9 in a 45 mile per hour zone in the town of Thompson brought this action to recover damages for the resulting personal injuries. The jury returned a defendant's verdict. The trial judge sustained plaintiff's motion for new trial on the ground that he erred in admitting the testimony of the highway patrolman as to the speed of the vehicle at the time the brakes were applied from the skidmarks because the patrolman 'did not possess the required qualifications of an expert in this area, nor did he consider essential factors necessary to express the opinion as to the speed of defendant's vehicle', citing Hedges v. Conder (1969, Iowa), 166 N.W.2d 844; Hardwick v. Bublitz (1963), 254 Iowa 1253, 119 N.W.2d 886, and Kale v. Douthitt (1960, 4 CA), 274 F.2d 476. The trial court ruled against plaintiff on all other grounds urged. Therefore, the only question before us here is whether the trial court abused its discretion during the trial when it permitted the highway patrolman to express an opinion as to the speed of defendant's vehicle from the skidmarks.

I. In recent years legal writers have given considerable attention to the use of opinion evidence for the reconstruction of automobile accidents generally and the determination of speed from skidmarks specifically. Anno. 29 A.L.R.3rd 248; 23 A.L.R.2d 112, 141; 10 Am.Jur., Proof of Facts, 137 et seq., 673 et seq.; Lacy, Automobile Accident Cases, Scientific Reconstruction, chapter 6; Opinion Evidence in Iowa, Hon. Mark McCormick, 19 Drake L.Rev. 245; Reconstruction of Automobile Accidents Through Lay and Scientific Testimony, Schoone and Schapiro, 47 Marquette L.Rev. 491; 53 Iowa L.Rev. 421; 48 Iowa L.Rev. 1055.

We permit expert testimony when such testimony would be of assistance to the trier of facts. Schmitt v. Jenkins Truck Lines, Inc. (1969, Iowa), 170 N.W.2d 632, 651. Our recent cases have recognized that the field of accident reconstruction is a proper subject of expert testimony. Karr v. Samuelson, Inc. (1970, Iowa),

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176 N.W.2d 204, 209; Dougherty v. Boyken (1968), 261 Iowa 602, 611, 155 N.W.2d 488, 493.

We have permitted investigating officers to express opinions on some matters disclosed by their investigation when properly qualified. Robeson v. Dilts (1969, Iowa), 170 N.W.2d 408, 413; Schmitt v. Jenkins Truck Lines, Inc., supra; Dougherty v. Boyken, supra; Lessenhop v. Norton (1967), 261 Iowa 44, 55--56, 153 N.W.2d 107, 114; Mickelson v. Forney (1966), 259 Iowa 91, 143 N.W.2d 390; Brower v. Quick (1958), 249 Iowa 569, 577, 88 N.W.2d 120, 124--125.

Although we have repeatedly stated we are committed to the liberal rule that the admission of expert testimony rests largely within the discretion of the trial court, Tiemeyer v. McIntosh (1970, Iowa), 176 N.W.2d 819, 824; Karr v. Samuelson, Inc., supra; Robeson v. Dilts, supra; Dougherty v. Boyken, supra, the discretion ceases which the record shows as a matter of law that the witness is not qualified or the facts upon which the opinion is based are not sufficiently stated by the witness. Hedges v. Conder (1969, Iowa), 166 N.W.2d 844, 857--858. We affirm the granting of a new trial as the record shows the witness was not properly qualified to express an opinion as to speed and failed to state a sufficient factual basis for his opinion.

II. Patrolman James Lind investigated the accident. He observed two skidmarks on defendant's side of the center line running to the front wheels of defendant's car. They were 94 feet long.

The evidence disclosed Lind had been with the Iowa Highway Patrol about 11 1/2 years at the time of trial. Every year he attends police science courses at the University of Northern Iowa conducted by Dr. Holcomb, head of the police sciences at the University of Iowa. Instructors from other schools are used including some from the Northwestern Institute of Science. He also graduated from the accident investigation course at the University of Iowa. Part of the instruction relates to the determination of the speed of a car by the length of skidmarks from charts furnished by the highway patrol. The highway patrol regularly sends out bulletins containing the latest information connected with accident prevention and cause. The last school he attended that dealt with skidmarks was at the University of Iowa in 1966.

Patrolman Lind had investigated 10 to 15 accidents a month during his 11 1/2 years on the patrol and reported them to the state. Part of his job was to reach conclusions as to the speed of the vehicles involved in the accidents. He has made tests with pickup trucks and passenger cars by driving them at different known speeds, skidding the tires by applying the brakes, measuring the skidmarks and comparing them with the charts. He also has made such tests at the scene of an accident using the vehicles involved.

With this foundation, he was then asked: 'Now I will ask you Patrolman Lind if as a result of the training you have had as you have related to me today and yesterday, if as a result of your experience in investigating accidents and if as a result of going to the scene of the accident involved in this litigation, observing and measuring the skidmarks, observing the Bernhardt vehicle, its tires, its size and everything about it, observing the pavement, the grade and the topography and all of the physical things and physical facts that existed out there, if you can estimate with a reasonable degree of accuracy the approximate speed that the Bernhardt car was going at the time it applied its brakes and the skidmarks commenced?'

It was ascertained on voir dire that Patrolman Lind did not know the exact weight of the vehicle or the type of tires it had. He had noticed the highway was running slightly uphill at the scene of the accident which would cause the car to stop in a shorter distance. He was familiar with studies of the coefficient of friction of the tires against the paving but did not apply them in this case. He testified: 'I

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don't think the surface of the tire or the weight of the vehicle will make hardly any difference, there would be a little difference, but not enough to bother the estimation.'

The court then permitted the witness to testify over objection that defendant's car was traveling between 38 and 44 miles per hour at the time the skidmarks commenced.

III. In this case we are dealing with the relatively simple factual situation where defendant's car skidded to a stop without colliding with an object offering substantial resistance and left straight unbroken skidmarks of equal length on concrete paving. Defendant attempted to qualify the witness to estimate the speed from the skidmark on the basis of training and experience, rather than to qualify him to make a scientific calculation of the speed from a recognized formula. It is possible to qualify an investigating officer to estimate the approximate speed of an automobile from the skidmarks in this manner. It is common knowledge highway patrolmen conduct tests and give demonstrations designed to show stopping and braking distances at given speeds under certain conditions.

The courts and legal writers have recognized that investigating officers may be qualified to express an opinion as to speed from skidmarks left by a car braking to a stop without meeting substantial resistance.

'In instances where skidmarks are the only...