Gates v. Rosenogle

• Decision Date: 25 August 1983
• Docket Number: No. 3-782A164,3-782A164
• Citation: 452 N.E.2d 467
• Parties: Terry L. GATES, Defendant-Appellant, v. Toni ROSENOGLE, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 467

452 N.E.2d 467

Terry L. GATES, Defendant-Appellant, v. Toni ROSENOGLE, Plaintiff-Appellee.

No. 3-782A164.

Court of Appeals of Indiana,

Third District.

Aug. 25, 1983.

Robert J. Palmer, John J. Lorber, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for defendant-appellant.

Michael W. Cotter, Robert L. Stephan, South Bend, for plaintiff-appellee.

GARRARD, Judge.

Terry Gates appeals an award of $50,000 in damages. The award was the product of a motorcycle accident on May 15, 1979. On that afternoon, Toni Rosenogle and her boyfriend had four friends over for a cookout. One of these friends, Charlie Coy, left the cookout and returned with a quantity of beer. Rosenogle did not drink any of it. Coy, another friend named Michael Querry, and others did. Rosenogle saw Querry have several bottles of the beer.

The party broke up after several hours. Rosenogle went with one of the guests to visit the guest's mother. The two women ended the visit and proceeded to a local bar, where they encountered Querry and Coy. Rosenogle, who does not drink alcohol, waited outside while the other three went inside. She assumed they had drinks inside. The other three emerged after a while, and the four left together, with the women riding as passengers on Querry's and Coy's motorcycles. They stopped at another bar, which Coy and Querry entered. The two men remained there for about twenty minutes, and Rosenogle assumed, again, that they were drinking. When Coy and Querry came out, Rosenogle changed motorcycles and became Querry's passenger. She changed because she was alarmed at Coy's erratic operation of his motorcycle. The four proceeded for several blocks before turning south onto Franklin Street.

Terry Gates lived on Franklin Street, south of where Coy and Querry turned onto it. Gates owned a van, which he parked on the street in front of his house. Franklin is a relatively narrow street, with space enough only for two lanes of traffic and for parking along one side. Gates' van was parked along the east side adjacent to the northbound lane. Querry and Coy were traveling south in the remaining lane. As Querry and Coy approached, Gates got into his van. He started it, it stalled and he re-started it. After the stall, Gates turned off his headlights and had not turned them back on when he heard a thump. The thump was the sound of Querry's motorcycle colliding with Gates' van.

On March 17, 1980 Rosenogle filed a complaint against Gates for damages for injuries sustained in the collision. The basis of the complaint was that the collision was produced by Gates' negligence in pulling out into the path of Querry's motorcycle. Trial was held in February 1982 and the jury found for Rosenogle and assessed damages of $50,000. Gates appeals.

Gates raises five issues. Because three of those issues involve the instructions given to the jury, and involve the same standard of review, we shall treat those issues as one. The resulting issues are:

1. Was it an abuse of discretion for the trial court to refuse to allow Gates to give his opinion as to the speed of Querry's motorcycle prior to impact?

2. Was it an abuse of discretion for the trial court to exclude Querry's deposition statement that he had taken a pill earlier in the evening on the date of the accident?

3. Did the trial court's instructions erroneously prevent the jury from considering the issues of incurred risk, contributory negligence and proximate cause?

I.

Gates argues that it was error not to allow him to give his opinion as to the speed of Querry's motorcycle. The premise is that Gates was qualified to assess the speed of the motorcycle from the sound of its engine. Gates does not offer himself as an expert in the area. He does argue that a non-expert familiar with a particular vehicle is qualified to give his opinion of its speed based only upon the sound it makes. Gates' asserted familiarity is based upon having owned and ridden motorcycles and having observed them racing along Franklin Street. Gates admits that he is unfamiliar with the particular model of motorcycle Querry was riding, but he contends that his knowledge is sufficient to make his opinion that Querry's motorcycle was traveling 45 m.p.h. admissible.

We first consider Gates' contention that a layman's opinion as to the speed of of a vehicle is admissible when that opinion is based upon the sound the vehicle makes as it travels. Estimates of the speed of a motor vehicle are not matters which are the exclusive province of experts. 8 AM.JUR.2D Automobiles and Highway Traffic, Section 1071. Laymen who have "the means or opportunity of observation" are competent to testify to the speed of the vehicle which they observed. Id. Whether a witness who did not actually see a vehicle traveling, but only heard it as it travelled, had sufficient opportunity of observation is an issue upon which the courts have disagreed. 8 AM.JUR.2D Automobiles and Highway Traffic, Section 1073; Annot., 33 A.L.R.3D, 1045.

Gates' primary reliance is upon Kuhn v. Stephenson (1928), 87 Ind.App. 157, 161 N.E. 384. Kuhn was a suit for damages for the consequences of an automobile accident. On appeal, Kuhn challenged the admission of the testimony of a witness who had heard, but not seen, one of the vehicles and who concluded, from the "sound of the motor," that it had been traveling 45 m.p.h. The appellate court held there was no error in admitting the testimony. One reason for the holding was the unique qualifications of the witness: he was an automobile mechanic with twelve years' experience familiar with the particular model of vehicle involved. Another reason was that, although the court felt the testimony was distinctly inferior to testimony based upon visual and aural observation, the court concluded that testimony "based solely upon the sound of the motor ... could have had but little weight with the jury." Id. at 160, 161 N.E. 384.

While Kuhn supports the proposition that speed estimates based upon motor sound are not necessarily inadmissible, the observer in Kuhn was extraordinarily qualified to make such an estimate. The level of qualification was a product not only of the witness' years of experience but also of the nature of that experience. Experience in repairing engines reasonably permits an inference of familiarity with engine sounds, and their implications.

It was the presence of similar expertise which produced the holding in Pierson v. Frederickson (1968), 102 N.J.Super. 156, 245 A.2d 524, the other bulwark of Gates' argument. In Pierson the New Jersey Appellate Court held that it was not error to permit a witness "with experiental qualifications for judging speed based on auditory perception ... greater than those of the ordinary layman" to give his opinion of an automobile's speed. 245 A.2d at 527. The witness was an electronics engineer with 30 years' experience researching the use of sound waves to measure movement of persons and vehicles. Id. at 526. ¹

The general rule invests the trial court with the exercise of sound discretion in the admission or exclusion of marginally relevant evidence which has a potential for prejudice. See, e.g., Chrysler Corporation v. Alumbaugh (1976), 168 Ind.App. 363, 342 N.E.2d 908, modified 168 Ind.App. 363, 348 N.E.2d 654. The rule finds much expression in the area of opinion testimony. See, e.g., Linton-Summit Coal Co. v. Hutchinson (1953), 232 Ind. 369, 373, 111 N.E.2d 819; O'Toole v. Tudor (1910), 175 Ind. 227, 231, 93 N.E. 276; Northern Ind. Pub. Svc. Co. v. Otis (1969), 145 Ind.App. 159, 250 N.E.2d 378, 404. Accordingly, we will not reverse the trial court in the absence of an abuse of discretion, which requires a showing that the ruling was clearly against the logic and effect of the circumstances. Linton-Summit Coal Co., supra.

Kuhn, supra, and Pierson, supra, must be read to stand for the proposition that upon the facts (qualifications) there present, it was not an abuse of discretion to admit the opinion.

On the previously recited facts before us concerning both Gates' qualifications and the specific nature of the opinion sought, we cannot say it was an abuse of discretion to exclude the opinion. Compare, Johnson v. Wilson (Ind.App.1936), 200 N.E. 729, 730, which while superseded by transfer on other grounds, 211 Ind. 51, 5 N.E.2d 533, noted that "opinions as to the speed of a moving object may be given when the witness shows proper knowledge, but to base such judgment on the noise made without actual observation should not be permitted."

II.

Gates next argues that the trial court abused its discretion by refusing to admit Querry's deposition statement that he had taken a diet pill on the night of the accident. After Querry made it clear that he would claim the privilege against self incrimination and would not testify about the matter at trial, Gates sought to introduce the deposition statement. In the deposition Querry had said that he took a diet pill, or "speed," at about 7:00 o'clock in the evening of May 15, 1979. The trial court ruled the statement inadmissible. Gates urges this was an abuse of discretion because the evidence was essential to his defenses that Rosenogle incurred the risk, was contributorily negligent and that Querry's actions were the sole proximate cause of the injury.

The use of depositions at trial is governed by Indiana Rules of Procedure, Trial Rule 32. Specifically, TR 32(A)(3) deals with the depositions of non-party witnesses and provides:

"The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(a) that the witness is dead; or

(b) that the witness is outside the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(c) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or

(d) that the party offering the deposition has been unable to...