Gerberg v. Crosby

Decision Date28 August 1958
Docket NumberNo. 34520,34520
Citation329 P.2d 184,52 Wn.2d 792
PartiesJefferson M. GERBERG, Respondent, v. William A. CROSBY and Hazelle H. Crosby, husband and wife, Appellants.
CourtWashington Supreme Court

Graves, Kizer & Gaiser, John G. Layman, Robert E. Stoeve, Spokane, for appellants.

H. Earl Davis, Spokane, for respondent.

FINLEY, Justice.

This is an action arising out of a collision between an automobile and a motorcycle at the intersection of Howard Street and Trent Avenue in Spokane.

Shortly before the accident plaintiff Gerberg's motorcycle was stationary, pointed in a northerly direction on Howard Street in the outside lane of traffic. At the same time the defendants' 1939 Cadillac sedan, which was being operated by Mrs. Crosby, was stationary, pointed in a southerly direction on Howard Street in the inside lane of traffic. Both parties were waiting for a green light in order to proceed. It was clear and dry. Arc lights located at all four corners illuminated the intersection.

When the signal lights governing traffic on Howard Street turned to green, Mrs. Crosby commenced to make a left turn onto Trent Avenue, and Mr. Gerberg proceeded northerly on Howard Street. The testimony is in conflict as to exactly where and how the collision in the intersection occurred. It is unnecessary to recount the details of that testimony.

Mr. Gerberg brought this action against the Crosbys for damages to compensate him for the destruction of his motorcycle and for the physical injuries to his person. Plaintiff alleged that Mrs. Crosby, while making a left turn, failed to look out for and yield the right of way to his motorcycle. Defendants answered, denying plaintiff's aforementioned allegations and affirmatively alleging that plaintiff was guilty of contributory negligence. In addition, defendants filed a cross-complaint against the plaintiff, alleging that the Gerberg motorcycle struck the Crosby car while the latter was stationary, and that plaintiff had a last clear chance to avoid the collision.

After both parties had presented their evidence, the trial judge dismissed the defendants' cross-complaint for lack of substantial evidence tending to support the allegations. The jury was instructed accordingly that they were not to consider the evidence relating to the damages suffered by the defendants. The remaining issues of Mrs. Crosby's alleged negligence and plaintiff's alleged contributory negligence were submitted to the jury under proper instructions. The jury returned a verdict in favor of the plaintiff. Defendants have appealed, assigning as error the dismissal of their cross-complaint and the introduction of certain expert testimony.

With respect to the admission of the expert testimony, appellants contend the trial judge committed prejudicial error in permitting Wayne A. Hendren, a city police officer, to give his opinon as to the point of impact between the car and the motorcycle. Henden arrived at the scene after the accident had occurred. He based his opinion as to the point of impact on the physical facts he had personally observed at the scene of the accident.

Hendren testified that he had been on the traffic investigation squad for seven years, during which time he investigated about two thousand accidents per year: that in connection with the investigation of accidents he had attended a special school for two weeks. He testified that he had determined the point of impact in many accidents in connection with his work. When asked whether he had located the point of impact in the accident between the Crosby car and the Gerberg motorcycle, he replied that he had. Appellants objected to Hendren's testimony as to the location of the point of impact on the ground that this was not a proper subject of expert testimony. No objection was made to the qualifications of Hendren as an expert. The trial court overruled the objection and admitted the evidence. Hendren made it clear that he based his opinion solely on skid marks made by the motorcycle after the collision. He stated that the marks were such that they indicated that the motorcycle had gone into a side skid, which he characterized as an abrupt change of direction. There were no skid marks made by the car, nor did the motorcycle leave any skid marks other than the side skid marks.

If the inferences to be drawn from physical facts are not a matter of such general knowledge as to be within the common experience of laymen, opinion evidence by a qualified expert is admissible to assist the jury in the proper understanding of the physical facts. Knight v. Borgan, Wash.1958, 324 P.2d 797; Hopkins v. Comer, 1954, 240 N.C. 143, 81 S.E.2d 368; Swanson v. La Fontaine, 1953, 238 Minn. 460, 57 N.W.2d 262. '* * * If the issue involves a matter of common knowledge about which inexperienced persons are capable of forming a correct judgment, there is no need for expert opinion. There are many matters, however, about which the triers of fact may have a general knowledge, but the testimony of experts would still aid in their understanding of the issues. * * *' Mason Ladd, Dean, The State University of Iowa College of Law, 'Expert and Other Opinion Testimony,' 40 Minn.L.Rev. 437, 443.

This court has long recognized that a qualified expert is competent to express an opinion on a proper subject even though he thereby expresses an opinion on the ultimate fact to be found by the trier of fact. 1 Thus, in Helland v. Bridenstine, 1909, 55 Wash. 470, 104 P. 626, 628, the court said:

'The hypothetical question complained of was a fair summary of the facts which the respondent's evidence tended to prove. True, the question embodied the very fact that was ultimately to be found by the jury, but this does not render it incompetent. To reach their final conclusion the jury were compelled to draw an inference from the facts proven which involved a question of medical science--* * * and, as that question involved a matter of medical science, it was proper to submit to the jury on the question the opinion of an expert versed in that science.'

And in Patrick v. Smith, 1913, 75 Wash. 407, 134 P. 1076, 1079, 48 L.R.A., N.S., 740, the court said:

'Two mining engineers who testified that they had had experience and observation in the use of explosives in large quantities, in answer to a hypothetical question which assumed facts which the evidence tended to establish, were permitted to express an opinion that the explosion caused the loss of the water. It is argued that it was not competent for them to express an opinion upon the very issue the jury was required to decide. The testimony was competent.'

See also Taylor v. Kidd, 1913, 72 Wash. 18, 129 P. 406; Lynch v. Republic Publishing Co., 1952, 40 Wash.2d 379, 243 P.2d 636; 33 Am.Jur. 95; Een v. Consolidated Freightways, D.C.N.D.1954, 120 F.Supp. 289; same case 8 Cir., 1955, 220 F.2d 82; Grismore v. Consolidated Products Co., 1942, 232 Iowa 328, 5 N.W.2d 646, and 40 Minn.L.Rev. 437, supra.

The Model Code of Evidence, a product of the American Law Institute, makes this point very clear 'Rule 401. Testimony in Terms of Opinion.

'(1) In testifying to what he has perceived a witness, whether or not an expert, may give his testimony in terms which include inferences and may state all relevant inferences, whether or not embracing ultimate issues to be decided by the trier of fact, unless the judge finds

'(a) that to draw such inferences requires a special knowledge, skill, experience, or training which the witness does not possess, or

'(b) that the witness can readily and with equal accuracy and adequacy communicate what he has perceived to the trier of fact without testifying in terms of inference or stating inferences, and his use of inferences in testifying will be likely to mislead the trier of fact to the prejudice of the objecting party.

'(2) The judge may require that a witness, before testifying in terms of inference, be first examined concerning the data upon which the inference is founded.' (Emphasis supplied.) Model Code of Evidence 199, Ch. V, Expert and Opinion Evidence, Rule 401.

In his foreword to the Model Code of Evidence, Professor Edmund M. Morgan states:

'Judges and lawyers agree with commentators that the entire body of law dealing with opinion evidence needs radical revision. Mr. Wigmore says that the opinion rule 'has done more than any one rule of procedure to reduce our litigation towards a state of legalized gambling.' The rules evolved in this country which prevent a witness from relating his relevant experiences in language naturally and ordinarily used by laymen, because phrased in terms of inferences or conclusions, have invited numberless trivial appeals and have caused many indefensible reversals. They are vague in phrasing and capable of capricious...

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  • State v. Kirkman
    • United States
    • Washington Supreme Court
    • April 5, 2007
    ...proper subject even though he thereby expresses an opinion on the ultimate fact to be found by the trier of fact. Gerberg v. Crosby, 52 Wash.2d 792, 795-96, 329 P.2d 184 (1958); ER 704. The mere fact that the opinion of an expert covers an issue which the jury has to pass upon, does not cal......
  • State v. Haq
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    • February 24, 2012
    ...at 77. 158. Report of Proceedings (Dec. 2, 2009) at 18. FN159. Kirkman, 159 Wash.2d at 929, 155 P.3d 125 (citing Gerberg v. Crosby, 52 Wash.2d 792, 795–96, 329 P.2d 184 (1958); State v. Ring, 54 Wash.2d 250, 255, 339 P.2d 461 (1959)). 160. 159 Wash.2d 918, 155 P.3d 125 (2007). FN161. Id. at......
  • State v. Haq
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    • January 30, 2012
    ...156. Id. 157. Id. at 77. 158. Report of Proceedings (Dec. 2, 2009) at 18. 159. Kirkman, 159 Wn.2d at 929 (citing Gerberg v. Crosby, 52 Wn.2d 792, 795-96, 329 P.2d 184 (1958); State v. Ring, 54 Wn.2d 250, 255, 339 P.2d 461 (1959)). 160.159 Wn.2d 918, 155 P.3d 125 (2007). 161. Id. at 929-30. ......
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    ... ... a proper subject even though he thereby expresses an opinion ... on the ultimate fact that the jury will determine ... Gerberg v. Crosby , 52 Wn.2d 792, 795-96, 329 P.2d ... 184 (1958); ER 704 ... [ 10 ] RAP 2.5(a)(3); Kirkman , 159 ... Wn.2d at 926 ... ...
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