Hardwick v. Bublitz

• Decision Date: 12 February 1963
• Docket Number: No. 50713,50713
• Citation: 119 N.W.2d 886,254 Iowa 1253
• Parties: George W. HARDWICK, Jr., a minor, by Leona Bartz, his mother and next friend, Appellee, v. Darrel A. BUBLITZ, Harold Bublitz and Lucille Bublitz, Appellants.
• Court: Iowa Supreme Court

Page 886

119 N.W.2d 886

254 Iowa 1253

George W. HARDWICK, Jr., a minor, by Leona Bartz, his mother and next friend, Appellee, v. Darrel A. BUBLITZ, Harold Bublitz and Lucille Bublitz, Appellants.

No. 50713.

Supreme Court of Iowa.

Feb. 12, 1963.

Rehearing Denied April 8, 1963.

Pappas & Senneff, Mason City, for appellants.

Floyd Ensign, Northwood, and Westfall, Laird & Burington, Mason City, for appellee.

THORNTON, Justice.

One phase of this case has been before us previously, Hardwick v. Bublitz, Iowa, 111 N.W.2d 309.

Plaintiff, a minor, 15 years old at the time of the accident, brings this action by his mother as his next friend. Defendant Darrel A. Bublitz permitted his younger brother, Dean, then 15 years old, to use his 1953 Chevrolet to go to a 4-H meeting on November 10, 1958. Plaintiff's claim against Darrel is based on the reckless operation by Dean, section 321.494, Code of Iowa 1958, I.C.A. (All references herein) to the Code of Iowa refer to the Code of 1958, I.C.A.) His claim against defendants Harold and Lucille Bublitz, Dean's parents, is based on knowingly permitting Dean, an unlicensed driver, to drive on the highway, section 321.219, and permitting an incompetent driver to drive on the highway.

A jury verdict was returned against all defendants and they appeal.

Plaintiff was severely injured when the car driven by Dean went off the road. Plaintiff was a passenger, but the record does not show whether he was a front or rear seat passenger. Four other boys, about the same age, were in the car besides plaintiff and Dean. It is conceded Darrel permitted Dean to use his car. Dean drove from his farm home to the 4-H meeting. After the meeting, he, with the others, drove to Grafton. There they stopped to eat. Afterwards they went for a ride. Dean drove south out of Grafton two miles, then turned right or west on a gravel road. He drove west a little less than a mile and a quarter, to where there is a slight curve to the south after which the road runs on west. At the point of the curve the car went into the ditch, through fences, knocked down fence posts, and turned over two or three times. Plaintiff and another boy were thrown from the car. Further facts will be discussed as they relate to the points urged for reversal.

I. Defendants urge it was error to allow First Sergeant Jackley of the Iowa Highway Patrol to testify that in his opinion the Bublitz car was traveling between 55 and 70 miles an hour when it left the traveled portion of the graveled road. The sergeant's opinion was based on his experience as a patrolman, his training and education while such, and from his observations at the scene. We believe it was error to permit such testimony as it amounted to no more than a guess or speculation. This is true because the observations made, the facts existing at the scene, were not such that any scientific or expert knowledge shown to have been possessed by the sergeant, could be applied to them to make such determination. There were no skidmarks of any kind.

The sergeant has been a member of the patrol for 20 years with some three years out for service in the Navy. During that time he investigated from a thousand to fifteen hundred automobile accidents. He has attended three short course on accident investigation at Iowa City. And he attended refresher courses each year for the last number of years. From his testimony, these courses in Iowa City and at the Police Academy in Des Moines are conducted by instructors from The Traffic Institute, Northwestern University. In testifying about these courses, he said:

'When I say physical demonstrations I do not mean that actual accidents are caused * * *. I mean we go out on a specified piece of ground and test different automobiles as far as skidmarks are concerned in relation to the known speed they are driven and calculations are made and come up with the speed the car was actually driven at the time they laid down the skidmarks.'

Later he testified, '* * * the instructions we go through are one car accidents and how to determine the speed from the damage we find and the distance traveled and the skidmarks that are available.'

The sergeant also testified that on more than one occasion, two recently, he has observed the damage done in a one car accident when he was in pursuit and knew the speed.

In 'Judge and Prosecutor in Traffic Court,' published by The American Bar Association and The Traffic Institute, Northwestern University, Professor James Stannard Baker, Director of Research, The Traffic Institute, Northwestern University, in chapter 10 deals with skidmarks as evidence of speed. At page 191 he says in part, under the heading, 'Skidmarks Account for Only Part of the Speed':

'Suppose a car strikes something after leaving skidmarks 90 feet long. Speed is lost in the impact. An expert can reconstruct some of those accidents, if he is experienced, by allowing for the speed loss in doing certain kinds of damage. He can estimate speed pretty well for a certain type of vehicle meeting an object head-on from a certain speed. But police officers are not usually experienced in that. They ordinarily overestimate.

'We can also compute how much speed was lost by the sliding of a car which was struck. We must know the weight of the car and the coefficient of friction of that car with the pavement. From this we figure the amount of energy that would be required to slide the car on pavement. Then we can compute how much speed another car would have to have to do that work. That is, of course, a job for an engineer.'

At page 192: 'The calculation of speeds from skidmarks is done by a formula when the distance of the slide and the drag factor of the pavement have been determined. This formula is:

'Speed equals 5.5 times the square root of the product of distance times drag factor.'

We do not find that Professor Baker at any place states the speed of an automobile can be determined from the amount of damages to objects struck without more.

Sergeant Jackley testified in detail as to the conditions at the scene on which he based his opinion. He arrived about 30 minutes after the accident. There were tire marks in the loose gravel where the car left the roadway at the start of the slight curve to the south. The car went into the ditch, through the fence at that point running northeast-southwest, knocking down two or three posts including a corner post with a north-south fence and part of the east-west fence west of the corner post. A guy wire to a power line pole was broken at the insulator. In excess of 50 feet of fence was torn out. The car had rolled over two or three times from the marks in the pasture where it came to rest. At least five, and possibly more, fence posts were broken off. The corner post was eight inches in diameter, the others six, they were in fair to good condition. The car came to rest on its side facing south 146 feet west of the place it left the road and 28 feet from the traveled portion of the road. The condition of the car was shown in a picture taken at the scene. As above stated, there were no skidmarks.

Bearing on this question plaintiff cites to us our point of impact and manner of impact cases, Long v. Gilchrist, 251 Iowa 1294, 105 N.W.2d 82; Hamdorf v. Corrie, 251 Iowa 896, 101 N.W.2d 836; and Brower v. Quick, 249 Iowa 569, 577-580, 88 N.W.2d 120. The Brower case deals with the movement of the rear end of the car following the impact. He also cites Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646, and Roberts v. Koons, 230 Iowa 92, 296 N.W. 811, as well as a number of cases in which the expert opinion was based on skidmarks. We do not believe the skidmark cases in any way assist us here other than to demonstrate the need of such information as a basis for the opinion. The Grismore case does not involve automobile speed. It simply holds that an opinion by a qualified expert on a proper subject is not objectionable because it invades the province of the jury, i. e., passes on the ultimate fact question. The Roberts case does, but there we held the evidence of unqualified witnesses as to speed based on the condition of the vehicles was error. In the opinion we said, at page 96 of 230 Iowa, page 813 of 296 N.W.:

'But in any case such witness should be qualified and the facts upon which he bases his opinion should be sufficient to enable a witness so qualified to express an opinion which is more than a mere conjecture.'

In each of our cases above cited the broad discretion vested in the trial courts is expressed. This discretion ceases where the record shows as a matter of law the witness is not qualified or the facts upon which the opinion is based are insufficient.

Only three cases have come to our attention where it may be said an expert witness has been allowed to give his opinion as to speed of an unobserved vehicle where the facts did not include skidmarks. They are, Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229, wherein a state patrolman was allowed to testify to the speed of a car as it rounded a curve in a mountain road based on the fact that only the left wheels of the car left any tire mark. He explained that it was indicative of greatly excessive speed because the centrifugal force in rounding the curve at such speed took considerable pressure off the right wheels which pressure was added to the left wheels making this distinct mark. The officer in this case traveled this same road once a week for four years and on one occasion was in pursuit of a speeder and observed that at 55 m. p. h. the wheels on both sides left tire marks. In Clark v. Hiatt, 105 Ohio App. 402, 152 N.E.2d 701, a state highway patrolman was allowed to testify to the speed of a car, the opinion says, based on the physical facts he found at the scene. The case does not disclose skidmarks were found. In the same case an engineer testified to the speed the car was traveling to cover a certain distance in...