Gerberg v. Crosby
Decision Date | 28 August 1958 |
Docket Number | No. 34520,34520 |
Citation | 329 P.2d 184,52 Wn.2d 792 |
Parties | Jefferson M. GERBERG, Respondent, v. William A. CROSBY and Hazelle H. Crosby, husband and wife, Appellants. |
Court | Washington Supreme Court |
Graves, Kizer & Gaiser, John G. Layman, Robert E. Stoeve, Spokane, for appellants.
H. Earl Davis, Spokane, for respondent.
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. * * *'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:
And in Patrick v. Smith, 1913, 75 Wash. 407, 134 P. 1076, 1079, 48 L.R.A., N.S., 740, the court said:
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
'(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:
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State v. Kirkman
...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......
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State v. Haq
...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......
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State v. Haq
...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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State v. Dunomes
... ... 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 ... ...