Harrison v. Icx Illinois-California Exp., Inc.

• Decision Date: 11 May 1982
• Docket Number: No. 5343,ILLINOIS-CALIFORNIA,5343
• Citation: 1982 NMCA 89,98 N.M. 247,647 P.2d 880
• Parties: Bruce HARRISON, Rosemary A. Harrison, State Farm Mutual Automobile Insurance Company, and Blue Cross and Blue Shield, Inc., Plaintiffs-Appellants, v. ICX,EXPRESS, INC., Leonard E. Hunt, and Transport Indemnity Insurance Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 880

647 P.2d 880

98 N.M. 247

Bruce HARRISON, Rosemary A. Harrison, State Farm Mutual Automobile Insurance Company, and Blue Cross and Blue Shield, Inc. Plaintiffs-Appellants, v. ICX, ILLINOIS-CALIFORNIA EXPRESS, INC., Leonard E. Hunt, and Transport Indemnity Insurance Company Defendants-Appellees.

No. 5343.

Court of Appeals of New Mexico.

May 11, 1982.

Certiorari Denied June 17, 1982.

Winston Roberts-Hohl, Santa Fe, for plaintiffs-appellants

Carl J. Butkus, Civerolo, Hansen & Wolf, P. A., Albuquerque, for defendants-appellees.

OPINION

LOPEZ, Judge.

The plaintiffs appeal the jury verdict in favor of the defendants and the denial of their motion for a new trial in a personal injury case. We affirm.

The plaintiffs raise two issues on appeal: 1) that the trial court erred in admitting expert testimony on accident reconstruction; and 2) that the trial court abused its discretion by refusing to grant the plaintiffs a new trial, because the verdict was contrary to the evidence, and because the jurors were confused. The defendants challenge the jurisdiction of this court to determine the second issue on the ground that the order denying the motion for a new trial was entered after notice of appeal. The defendants rely on Selgado v. Commercial Warehouse Company, 88 N.M. 579, 544 P.2d 719 (Ct.App.1975), for the proposition that, by filing a notice of appeal, the plaintiffs waived their motion for a new trial. In Selgado, the defendants filed a motion for a new trial or, alternatively, for a remittitur. The defendants then filed notice of appeal before the trial court had disposed of their motion. This court held that

By serving the notice of appeal, the defendants abandoned the motion by depriving the trial court of jurisdiction. This amounts to an election to waive the motion and proceed with the appeal as though the motion had not been made. (citations omitted).

In this case, the plaintiffs filed their motion for a new trial on July 8, 1981, and the court orally denied the motion on July 20, 1981. The plaintiffs then filed their appeal from the judgment and from the court's denial of their motion on August 3, 1981. The order denying the new trial was filed on August 31, 1981.

We agree with the defendants that we lack jurisdiction to review plaintiffs' appeal from the courts "denial of their motion for a new trial". There is no final written appealable order on their motion for a new trial. See N.M.R.Civ.App. 3(a), N.M.S.A.1978. In Bouldin v. Bruce M. Bernard, Inc., 78 N.M. 188, 429 P.2d 647 (1967), the Supreme Court held: "appeals will lie only from a formal written order or judgment signed by the judge and filed in the case, or entered upon the records of the court and signed by the judge thereof." Moreover, ordinarily an order denying a new trial is not appealable. Public Service Co. of N. M. v. First Jud. Dist. Ct., 65 N.M. 185, 334 P.2d 713 (1959).

We will, however, review plaintiffs' appeal challenging the judgment based on the jury verdict.

EXPERT OPINION EVIDENCE

The plaintiffs claim that the trial judge erred in allowing the testimony of Mr. Miller, an accident reconstruction expert called by defendants. The plaintiffs did not object to Mr. Miller's qualifications to testify as an expert. Mr. Miller based his opinion on review of the accident report by Officer Waters, an interview with Officer Waters, the trial testimony, information received from the defendants' attorney, photographs of the scene of the accident, measurements made at the scene of the accident, and a reenactment of the accident by Mr. Hunt, driver of the truck.

Mr. Miller gave his opinion that 1) the truck had to have backed from 14 to 19 feet before hitting the Harrison's automobile; 2) it had to have taken Mr. Hunt from 3 to 10.42 seconds to back that truck that distance; 3) the automobile would have suffered more damage if the truck had been backing at the faster speeds; 4) if Mr. Harrison was driving at 15 miles per hour, he had from 66 to 220 feet from the point of impact to observe the truck backing up; and 5) if Mr. Harrison was driving it would have taken him, at 15 miles per hour, from 28 to 35 feet to stop his car after observing the moving truck.

The plaintiffs objected to the lack of foundation by Mr. Miller about the building adjoining the alley, and to Mr. Miller's testimony about the amount of damage that would have occurred to the automobile if Mr. Hunt had been backing at a high rate of speed. These objections did not properly preserve the plaintiffs' argument that Mr. Miller based his opinion on the incorrect backing distance of 14 to 19 feet. However, even if objection had been properly tendered, Mr. Miller testified to a sufficient foundation for his opinion.

The law in New Mexico is clear that the testimony of an expert is not incompetent and impermissibly speculative as lacking a factual basis where the expert gives a satisfactory explanation as to how he arrived at his opinion. This Mr. Miller did. See, Gonzales v. General Motors Corporation, 89 N.M. 474, 553 P.2d 1281 (Ct.App.1976). An expert witness is not required to state the basis of his opinion on direct examination unless the trial court so directs. N.M.R.Evid. 705.

Under N.M.R.Evid. 703 and 705, an expert may state his opinion and give his reasons without prior disclosure of the underlying facts or data, unless the trial judge requires otherwise. If the trial judge does require the expert to first state the basis for his opinion and it appears unsatisfactory or based on unsatisfactory factors it is subject to being stricken. See, Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972) (decided prior to New Mexico Rules of Evidence).

The facts show that the basis for Mr. Miller's testimony came from the testimony of the plaintiffs, and other witnesses. This being the case, the question of weight to be given Mr. Miller's testimony was one for the jury to determine. Miller's and the other testimony pointed out by plaintiffs simply raised a conflict to be resolved by the jury. Expert testimony concerning tests done at the site of an accident is admissible and competent. Scott v. McWood Corporation, 82 N.M. 776, 487 P.2d 478 (1971); Tobeck v. United Nuclear-Homestake Partners, 85 N.M. 431, 512 P.2d 1267 (Ct.App.1973). The admission of expert testimony is within the discretion of the trial court. Cantrell v. Dendahl, 83 N.M. 583, 494 P.2d 1400 (Ct.App.1972). We conclude that the trial court did not err in allowing the testimony of Miller, because he explained how he arrived at his expert testimony, and because it was based on facts which were before the jury.

VERDICT CONTRARY TO THE EVIDENCE

Plaintiffs contend that the driver of the defendants' truck, Mr. Hunt, should have been found negligent as a matter of law based on § 66-7-354, N.M.S.A.1978, and jury instruction No. 16, which reads as follows:

There was in force in the state at the time of the occurrence in question a certain statute which provided that:

"The driver of a vehicle shall not back it:

A. Unless the movement can be made with reasonable safety and without interferring with other traffic; * * *"

If you find from the evidence that the defendant Hunt violated this statute, you are instructed that such conduct constituted negligence as a matter of law.

Hunt testified that he looked in both mirrors before backing and that he did not see the Ford automobile driven by one of the plaintiffs at the time of the collision. There was conflicting evidence on the circumstances surrounding the accident. The question of whether Mr. Hunt's conduct was reasonable under the circumstances was a matter for the jury to determine. See, Button v. Metz, 66 N.M. 485, 349 P.2d 1047 (1960); Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047 (1951). Based upon the record in this case, the testimony of Mr. Hunt, and on Button v. Metz and Chandler v. Battenfield, the trial court did not abuse its discretion by refusing to find Hunt negligent as a matter of law. This was a matter of fact for the jury to determine. In addition, the jury was properly instructed as to the law pertaining to Hunt's situation. The plaintiffs concurred and made no objection to instruction No. 16. There was conflicting evidence as to Hunt's negligence, but it was the duty of the jury to resolve the conflicts, to weigh the testimony and credibility of the witnesses and to decide the question of Hunt's negligence. There was evidence to support the jury's decision that Hunt was not negligent.

CONFUSION OF JURORS

Plaintiffs also argue that the jurors were confused by instruction No. 37 and by the special interrogatories, which read as follows:

VERDICT OF TEN

Upon retiring to the jury room, and before commencing your deliberations, you will select one of your members as a foreman. When as many as ten of you have agreed upon an answer to the first two Special Interrogatories, you will record that answer.

When as many as ten of you have agreed upon an answer to interrogatories 3 and 4, you will...