Fortner v. Town of Register

• Decision Date: 08 February 2008
• Docket Number: No. A07A1676.,A07A1676.
• Citation: 657 S.E.2d 620,289 Ga. App. 543
• Parties: FORTNER et al. v. TOWN OF REGISTER.
• Court: Georgia Court of Appeals

289 Ga. App. 543

657 S.E.2d 620

289 Ga.App. 543

FORTNER et al. v. TOWN OF REGISTER.

No. A07A1676.

Court of Appeals of Georgia.

February 8, 2008.

Smith & Jenkins, Wilson R. Smith, Savannah, for appellants.

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, Savannah, Casey & Gilson, Matthew D. Williams, Atlanta, for appellee.

MIKELL, Judge.

After Leon E. Fortner was killed when the tractor-trailer he was driving collided with a train operated by an employee of Ogeechee Railway at a railroad crossing in the Town of Register, his widow, Sheila M. Fortner, brought this negligence action against the Railway and Register. Following interim appeals,¹ the case proceeded to trial, and the jury returned a defense verdict. Sheila Fortner appeals asserting that the trial court erred in admitting opinion testimony from two expert witnesses. For the reasons set forth below, we affirm the judgment.²

According to testimony adduced at trial, the train crossing in Register at Main Street was marked with a stop sign (located thirteen feet four inches from the closest rail of the tracks) and a painted stop bar (fifteen and a half feet from the closest rail). A city park had been built next to the railroad tracks, and vegetation had been planted in connection with this park within the Railway's right of way, along the edge of the park. Plaintiff contended at trial that this vegetation was overgrown and therefore obstructed the decedent Fortner's ability to see the oncoming train as he approached the tracks.

The accident occurred on the afternoon of October 6, 1997. Two witnesses observed Fortner's truck approach the railroad crossing on Main Street: Jim Rushing, a former member of the Register City Council, who crossed the tracks in his pickup truck just ahead of Fortner's vehicle, and who observed the collision in his rear-view mirror; and Wyman Harley, the Railway's locomotive engineer, who had taken his train through this crossing "a thousand" times and who was riding in the locomotive of the train on that day. Both witnesses testified that Fortner's truck stopped only one time.

The train engineer, Harley, testified that, as he was keeping a lookout from his position in the locomotive, he first saw Fortner's truck when it was approximately 20 to 25 feet from the tracks. The truck was moving when Harley first saw it, and Harley realized with alarm that the truck was "running too fast" and would not be able to stop before the rails. He immediately applied the train's emergency brakes. As the train closed in on the crossing, Harley saw the truck come to a stop "[r]ight directly on the tracks," with the front wheels of the tractor-trailer resting between the two rails of the track. Harley saw the truck stop only that one time before the collision occurred. Rushing, looking back along the road toward the truck, saw Fortner's vehicle stop only once, but was unable to tell exactly where it stopped, whether very close to the tracks or on the tracks. As he watched in his rear-view mirror, however, he saw the train hit the truck and push it out of the way.

1. Appellant contends that the trial court erred in allowing the investigating officer, Ricky Helton, to opine that a contributing factor of the accident was that the decedent Fortner "disregarded the stop sign." Appellant asserts that the admission of this testimony was error because Helton did not personally witness the collision and was not qualified as an expert in accident reconstruction. We disagree.

Helton, the investigating officer, a Georgia state trooper with 18 years experience at the time of trial, testified that he had attended training in traffic accident investigation and in preparing official traffic accident reports; that he had been trained to determine the cause of traffic accidents; and that as a state trooper he had investigated accidents numbering "in the thousands." Helton acknowledged that he did not have training in "accident reconstruction." Helton arrived at the scene 12 minutes after the collision occurred. He found decedent Fortner's body lying on the ground not far from the cab of the truck; the door of the cab was open. He testified at trial that he had examined the position of the train and the truck, and the damage to the cab of the truck and to the locomotive, as well as skid marks on the ground which he determined were those of the Fortner vehicle. He also spoke to witnesses at the scene, who confirmed that the train's front light had been flashing and its horn blowing as it approached the crossing. Based on his investigation on that day, Helton determined that, as the train came through the crossing, the front of the train struck the right front of the cab of the truck and swept the truck off the tracks. Over appellant's objection, Helton was allowed to testify that based upon his examination of the physical evidence at the scene and talking to the eyewitnesses at the scene, he concluded that a contributing factor to the accident was that Fortner "disregarded the stop sign."

It has long been recognized that "a police officer with investigative training and experience on automobile collisions is an expert,"³ although, "[o]f course the credibility and weight to be given his testimony is for the jury."⁴ Such an officer is an expert even if he is not trained to reconstruct traffic accidents;⁵ and, as an expert, the investigating officer "is allowed to testify about what he observed at the accident scene and to give his conclusions from those observations about what happened (as opposed to which party was at fault)."⁶ Indeed, for a trial court to exclude the investigating officer's testimony about the cause of the accident has been found to constitute an abuse of discretion.⁷ As this Court explained in Jefferson Pilot Life Ins. Co.,⁸ the issue is not whether the patrolman's opinion invaded the province of the jury, but whether the subject is a proper one for opinion testimony: "Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman."⁹ Where the investigating officer's opinion is based on his examination of physical evidence at the scene,¹⁰ and not solely on statements of witnesses,¹¹ and where he does not opine as to the ultimate issue of a party's negligence,¹² his opinion on the cause of the accident is admissible as "an assessment of fact and not a legal conclusion or a conclusion constituting a mixture of law and fact."¹³ Thus, an investigating officer may testify that one of the drivers was the sole cause of the accident;¹⁴ that the light was red;¹⁵ or that both drivers lost control.¹⁶ In the case at bar, trooper Felton did not opine as to whether Fortner was at fault or whether he was negligent. Rather, his testimony concerned the sequence of events leading up to the collision. We conclude that trooper Felton's opinion as to whether Fortner stopped for the stop sign was admissible.

Further, even if the trial court erred in admitting Felton's opinion testimony, any error was harmless and provides no basis for reversal, in light of the fact that this evidence was cumulative of the evidence of the two eyewitnesses, Harley and Rushing, who both testified that Fortner failed to stop short of the tracks. In addition, two other defense experts opined at trial, without objection, that Fortner did not stop at the stop sign at the crossing. It is well settled that "evidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence."¹⁷

2. Appellant further contends that the trial court erred in permitting the Railway's expert witness, Herschel Andrews, to testify that, looking down the tracks from the crossing, he could have seen a train coming. This enumeration of error fails. First, it was not preserved for appeal; second, even if preserved for appeal, the testimony was properly admitted as the opinion testimony of an expert witness; and third, even if admitted in error, the error was harmless because the testimony was cumulative of testimony given by other witnesses.¹⁸

Andrews testified that from 1954 to 1984, he was a professional truck driver, accumulating three and a half million accident-free miles; and from 1984 until the time of trial, he taught truck driving, both in the classroom and over the road, to more than 100 students per year. Andrews visited the crossing where the collision occurred and observed the sight view available. When asked at trial if he had examined the sight view at the crossing for the purpose of determining whether it was adequate, he answered, "I did and it was — you could see some and if it had been a train up there, I think I could have seen the train."

Appellant objected to this testimony on the grounds that "[w]hat [Andrews] thinks is not evidence." This objection, however, was not sufficiently specific to provide any basis for a ruling by the trial court.¹⁹ Therefore, appellant has waived consideration of this error on appeal.

Even if the error had been preserved for appeal, however, the trial court did not abuse its discretion in admitting the opinion testimony of this expert witness. "Admissibility of evidence rests in the trial court's sound discretion, and wherever the evidence is of doubtful relevance or competence, it should be admitted and its weight left to the jury."²⁰ In particular, with regard to the qualification of a witness as an expert, "[t]he question of whether a witness is qualified to give his opinion as an expert is one for the court. Its determination will not be disturbed except that it be manifestly abused."²¹ As to the expertise required of such a witness, "[g]enerally nothing more is required to qualify an expert than that he has been educated in a particular trade or profession; and...