Dahl v. Turner

• Decision Date: 15 August 1969
• Docket Number: No. 317,317
• Parties: , 39 A.L.R.3d 207 Craig Lee DAHL, Plaintiff-Appellee, v. Lorena Brown TURNER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 816

458 P.2d 816

80 N.M. 564, 39 A.L.R.3d 207

Craig Lee DAHL, Plaintiff-Appellee, v. Lorena Brown TURNER, Defendant-Appellant.

No. 317.

Court of Appeals of New Mexico.

Aug. 15, 1969.

Certiorari Denied Sept. 17, 1969.

J. T. Whorton, Shipley & Whorton, Alamogordo, for defendant-appellant

R. Wilson Martin, and R. C. Garland, Garland, Martin & Martin, Las Cruces, for plaintiff-appellee.

OPINION

WOOD, Judge.

The appeal in this automobile accident case raises issues concerning (a) testimony as to speed (two issues), (b) evidence of negligence and proximate cause, (c) violation of posted speed as negligence per se, (d) the good samaritan statute and (e) the applicability of our guest statute.

This was a three car accident on U.S. Highway No. 180 east of Silver City. The highway has two traffic lanes for eastbound traffic and two traffic lanes for westbound traffic. The east and westbound lanes are divided by a median except where the Fort Bayard road intersects the highway. The Goodyear pickup, traveling north on the Fort Bayard road, had crossed the two eastbound lanes and was turning left (westbound) when it collided with the car driven by Mrs. Turner. The Turner car was traveling west. After the collision with the Goodyear pickup it traveled onto the north shoulder and then, in a curving path, went south and west across the two westbound lanes, across the median, across a turning lane for eastbound traffic and collided with the Mester vehicle traveling east in the northerly of the two eastbound lanes. Plaintiff, a passenger in the Turner car, sued Mrs. Turner, Goodyear and Mester. Summary judgment was entered in favor of Mester. The jury returned a verdict against Goodyear and Turner. Mrs. Turner appeals.

Speed--the expert testimony of Dr. Zimmerman.

Dr. Zimmerman gave his opinion that at a point 55 feet east of (and prior to) the collision between the Goodyear pickup and the Turner car, the Turner car was traveling at a speed in excess of 62 miles per hour. The posted speed in this area is 50 miles per hour. Mrs. Turner asserts the trial court erred in admitting this testimony. She presents four contentions as to the admissibility of Dr. Zimmerman's testimony.

First, Mrs. Turner relies on the Private Investigators Act; §§ 67--33--1 to 67--33--49, N.M.S.A.1953 (Repl.Vol. 10, pt. 1, Supp. 1967). This Act, among other things, provides for the licensing of private investigators. Section 67--33--9, supra, defines private investigator to include a person, other than an insurance adjustor, who '* * * makes an investigation for the purpose of obtaining information with reference to: * * * accidents or damage or injury to persons or properties; or securing evidence to be used before any court, * * *' Section 67--33--8, supra, provides that no person is to engage in a business regulated by the Act unless licensed under the Act.

Dr. Zimmerman was not licensed as a private investigator; he investigated the accident for the purpose of securing evidence to be used in court. Mrs. Turner claims he acted as a private investigator and not being licensed, he violated the Private Investigators Act. Because of this asserted violation. Mrs. Turner contends Dr. Zimmerman should not have been permitted to testify.

The Act provides no penalty for its violation and is silent as to whether testimony should be barred if the testimony pertains to information secured by a person violating the Act. We are not concerned with these matters in this case because Dr. Zimmerman did not violate the Private Investigators Act.

Section 67--33--10, supra, states that the Private Investigators Act does not apply to:

'E. A person engaged exclusively in a profession licensed by a board of this state.'

Dr. Zimmerman was registered as a professional engineer under the Engineering Practice Act. See §§ 67--21--29 to 67--21--53, N.M.S.A.1953 (Repl.Vol. 10, pt. 1). Mrs. Turner asserts, however, that Dr. Zimmerman did not testify '* * * primarily as an engineer but as a traffic reconstruction expert. * * *' Whether the testimony was 'as an engineer' or 'as a traffic expert' is not the point. The point is whether in conducting his investigation and giving his opinion based on that investigation, Dr. Zimmerman was engaged exclusively in his engineering profession.

Dr. Zimmerman's testimony is that in analyzing the accident and arriving at his opinion as to the speed of the Turner car, he used recognized engineering and mathematical formulas; that these formulas were applicable to the movement of masses, including cars. In applying these formulas to this accident, Dr. Zimmerman was engaged exclusively in the practice of engineering. See definition of the practice of engineering, § 67--21--31(A), N.M.S.A.1953, supra. Dr. Zimmerman was exempt from the Private Investigators Act.

Dr. Zimmerman conducted tests at the accident scene to determine the coefficient of friction. This coefficient was then used in arriving at his opinion as to speed. Mrs. Turner's second contention is that no similarity was established between the accident conditions and the tests performed by Dr. Zimmerman. On this basis, Mrs. Turner asserts the coefficient of friction determined by Dr. Zimmerman should not have been used and since this coefficient was a factor in the opinion as to speed, the opinion as to speed should not have been admitted.

Dr. Zimmerman conducted his tests in June and July, 1968. The accident happened in June, 1967. The witness's testimony concerning the coefficient of friction should not have been admitted unless that determination was made under conditions substantially similar to the conditions existing at the time of the accident. See Alford v. Drum, 68 N.M. 298, 361 P.2d 451 (1961); Hodgkins v. Christopher, 58 N.M. 637, 274 P.2d 153 (1954). Accordingly, we review the objections made by Mrs. Turner concerning lack of such similarity.

Dr. Zimmerman conducted two sets of tests. The first set was run with a 1965 Pontiac. After the witness described the first set of tests, Mrs. Turner objected that there was no testimony about the surface of the roadway or the coefficient of friction in 1968 as compared to 1967. Plaintiff's counsel indicated he had not completed laying his foundation; the court made no ruling on this objection. After the witness testified that the road was dry when he ran his tests (photographs show the road was dry at the time of the accident) Mrs. Turner made a general objection (no grounds specified) which was overruled.

Mrs. Turner made several subsequent objections but never again claimed there was no showing of similarity between road conditions at the time of the tests and at the time of the accident. The court's rulings on the various objections and its comments concerning the testimony show that the trial court was not alerted to any claim concerning lack of similarity of road conditions. The trial court never ruled on this point.

We do not consider whether there is evidence showing similarity of road conditions at the time of the tests and at the time of the accident. No ruling of the trial court having been invoked on this issue, it is not before us for review. Barnett v. Cal M, Inc., 79 N.M. 553, 445 P.2d 974 (1968); State v. James, 76 N.M. 376, 415 P.2d 350 (1966).

As to the other objections concerning similarity of conditions:

(a) The tests were not run by a 1967 Plymouth Fury, this being the model of the Turner car. The witness testified that the coefficient of friction is independent of the type of car as long as the brakes are locked. Further, the second set of tests were conducted with a 1968 Plymouth Fury, '* * * of the same weight and as far as we could tell the same characteristics of this other vehicle. * * *'

(b) There was no testimony at to calibrating the speedometer of the test cars with the speedometer of the Turner car. The witness testified that a difference in the speedometers would have affected his tests to determine the coefficient of friction. Realizing there would be some error, he took this into account by allowing for an eight percent variance and subtracting this percentage in arriving at the coefficient of friction.

( c) There was no testimony as to the distances involved in the tests in relation to the distances involved in the accident. This is true but we fail to see its pertinency. The witness conducted the tests to determine the coefficient of friction. He conducted these tests in the area where the Turner car left marks on the pavement as a result of braking action. He arrived at the coefficient by driving the test vehicles at known speeds, locking the wheels of the test vehicles and measuring the distance of the marks left on the pavement. He determined the coefficient by averaging these results. The fact that the marks left by the test vehicles were not compared with the marks left by the Turner car is not material to a determination of the coefficient of friction. The coefficient is determined by a formula applied to the factors of speed and skid distance.

Mrs. Turner's contention concerning lack of similarity between test and accident conditions is without merit. After testifying as to the coefficient of friction, Dr. Zimmerman answered a hypothetical question concerning the speed of the Turner car prior to braking and leaving skid marks. Mrs. Turner's third contention is that the witness was not qualified to give any opinion as to speed. In support of this contention, Mrs. Turner claims he had no experience in reconstructing accidents; he made a series of assumptions in arriving at his opinion as to speed and there is no showing that he had the qualifications to make such assumptions. Mrs. Turner also asserts that the assumptions made by Dr. Zimmerman were improper.

The fact that the witness had no prior experience in reconstructing automobile accidents does not, in itself, disqualify him. '* * * While it must appear that the witnesses have acquired sufficient knowledge...