Briney v. Williams
| Decision Date | 06 December 1968 |
| Docket Number | No. 20776,No. 2,20776,2 |
| Citation | 143 Ind.App. 691,242 N.E.2d 132 |
| Parties | Robert BRINEY, Appellant, v. Richard L. WILLIAMS, Darrell M. Williams, Emge Packing Company, and M T Produce Company, Appellees |
| Court | Indiana Appellate Court |
Bingham, Summers, Welsh & Spilman, Indianapolis, Allen Sharp, Williamsport, for appellant.
Wallace & Wallace, Covington, Conrad G. Harvey, Crawfordsville, McCormick & McCormick, Vincennes, for appellees.
This is an action by appellee Richard L. Williams against appellant to recover damages for personal injuries allegedly suffered as a result of a collision between a tractor-trailer driven by said appellee and an automobile driven by the appellant. Appellant filed a cross-action against all appellees to recover damages for personal injuries allegedly sustained by appellant as a result of such collision.
The testimony of the parties is in conflict regarding the circumstances of the collision; but, in essence, the appellant rearended appellee's semi-tractor. The day after the accident appellant pleaded guilty to a charge of reckless driving.
Appellee alleged negligence on the part of appellant as follows:
a) Operating an automobile at a high rate of speed in excess of 75 miles per hour,
b) Failure to keep a lookout, and
c) Failure to have his automobile under control in that he was unable to slow down or stop to avoid the collision.
Appellant denied the allegations of negligence and filed a 'cross-complaint' against appellee alleging negligence on the part of appellees as follows:
a) Failure to keep a lookout,
b) Failure to exercise control over the truck to avoid the collision, and
c) Failure to give a warning or signal prior to moving from the northbound lane into the southbound lane of the highway.
Appellee Richard Williams filed an answer to the cross-complaint denying the alleged negligence.
Appellees Darrell M. Williams, Emge Packing Company, and M T Produce Company filed a motion for summary judgment for the reason that the cross-complaint as to them was barred by the statute of limitations. This motion was sustained by the trial court and summary judgment was entered accordingly.
Trial was had by jury on the issues formed by the complaint of appellee, Richard L. Williams, and appellant's cross-complaint against said appellee. The jury returned a verdict for said appellee on his complaint in the amount of $40,000, and against appellant on his cross-complaint. Judgment was entered accordingly.
Appellant filed his motion for new trial which was overruled, and this is the assigned error relied upon in this court.
The first specification of error urged by appellant is that the verdict was contrary to law in that the court erred in admitting in evidence opinion testimony of a police officer concerning speed.
The speed of the vehicles at the time of the collision was one of the key issues in this case, both as regards liability and injuries. The testimony of the parties was in conflict on this point.
A police officer, who did not arrive at the scene of the accident until some time after the collision, was permitted to testify over objection that, based upon his observations, conversations with the parties, and training and knowledge as a police officer, that the speed of appellant's automobile at the time of the impact was 75 miles per hour, and the speed of appellee's truck was 50 miles per hour.
The admission of this evidence was error. Although there are no Indiana decisions precisely on point, we believe that this question is analogous to and controlled by this court's ruling in Presser v. Shull (1962), 133 Ind.App. 553, 181 N.E.2d 247. Thus, the speed of the two vehicles was a question of fact for jury determination based upon the eye-witness testimony of the parties. Presser v. Shull, supra.
Also, our Supreme Court has said,
'* * * where the facts can be fully placed before the jury, opinion evidence, even from experts, is incompetent if the facts are of such a nature that jurors are as well qualified to form an opinion upon them as witnesses.' Brunker v Cummins (1892), 133 Ind. 443, 447, 32 N.E. 732, 733.
Appellee contends that even if error was committed in the admission of this evidence it was rendered harmless by appellant's own testimony regarding his speed. We cannot agree. Appellant testified by sworn...
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