Housman v. Fiddyment

• Decision Date: 13 November 1967
• Docket Number: No. 52185,52185
• Parties: Mildred HOUSMAN, Respondent, v. Benjamin FIDDYMENT, Appellant.
• Court: Missouri Supreme Court

Page 284

421 S.W.2d 284

Mildred HOUSMAN, Respondent, v. Benjamin FIDDYMENT, Appellant.

No. 52185.

Supreme Court of Missouri, En Banc.

Nov. 13, 1967.

Farrington & Curtis, Thomas Strong, Richard K. Wilson, Springfield, for plaintiff-respondent, Mildren Housman.

William H. Sanders, Dean F. Arnold, Kansas City, W. Ray Daniel, B. H. Clampett, Springfield, for defendant-appellant, Caldwell, Blackwell, Sanders & Matheny, Kansas City, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, of counsel.

HOUSER, Commissioner.

Mildred Housman brought an action for $50,000 damages for personal injuries against Benjamin Fiddyment, who filed a counterclaim for $27,500 for personal injuries and property damages, all arising out of a head-on collision of their automobiles on Highway U, an 18-foot blacktop road in Christian County. There was a jury verdict for plaintiff for $16,000 on the petition and for plaintiff on the counterclaim. Defendant has appealed from the ensuing judgment.

The only question of liability tried and submitted was the question as to which of the two vehicles was across the center and traveling on the wrong side of the roadway. Each party contended that he was in the right and that the other was in the wrong in this respect.

Plaintiff's evidence on liability consisted of the testimony of plaintiff; an expert witness named J. Stannard Baker; a traffic officer; a photographer and eighteen photographs, many of which were taken at the scene of the collision before the vehicles were moved.

Plaintiff testified that she was driving her 1951 Chevrolet sedan west at a speed of 25 m.p.h. or less 'on the side of the road it belonged on,' on 'her' side of the road all of the time; that at no time did she let any part of her car get across the center of the road; that she was as close as she could get to the right-hand side of the road. Just before the collision she 'had a bare glance' of an approaching vehicle coming 'far too fast' down the hill in her lane right in front of her, coming straight at her on her side of the road. Almost instantaneously after she saw the oncoming car and before she could 'think one thought' the collision occurred and her car was knocked 'back down the hill and off the road.' She did not remember whether she applied her brakes.

Defendant's evidence on liability consisted of his own testimony, a photographer, a passerby who testified as to some skid marks he saw at the scene, a photograph of plaintiff's vehicle and twenty-one photographs taken at the scene of the accident 12 or 13 days after the event. Defendant testified that he was driving his 1959 Chevrolet station wagon east at a speed of 52 or 53 m.p.h.; that he came down one hill and over another that turned slightly to his right; that he was going slightly downgrade when the collision occurred; that at all times his station wagon was on its own side of the road, with its right side 'possibly two and a half, three foot from (his right-hand) side of the road' and its left side within a foot or two of the center of the road. Asked on cross-examination whether he could have drifted over and across the center of the road as he came around the curve and down the hill with the wagon loaded with 1000--1200 pounds of equipment, defendant stated 'I don't know whether I did for sure.' Asked if just before the impact he was cutting his vehicle back to the right, he answered 'That's right.' He first saw the other car when the vehicles were two or three car lengths apart. The other car was then 'possibly eighteen, twenty inches over the center,' coming at a speed of 50 m.p.h. He did not know whether he had time to apply the brakes. He was rendered unconscious.

The only issue on this appeal is whether the court erred in admitting the opinion testimony of plaintiff's expert accidentologist or reconstructionist, Mr. Baker, 'as to how, where and when the collision occurred.'

J. Stannard Baker is Director of Research and Development at the Traffic Institute of Northwestern University. A traffic engineer, he directs the major part of the research and development work at the institute. Educated as an electrical engineer, he was on the staff of the National Safety Council 1928--1945 and director of safety for the transit lines in Detroit one year. He has been associated at times with the institute since its founding in 1936. For 30 years he has observed, supervised and studied crashes of motor vehicles under controlled conditions. He teaches traffic reconstruction. He has written texts, manuals, guides, articles and books by the hundreds in this field. He invented devices to calculate speed of vehicles from skid marks. He has testified approximately 200 times in court as an expert. He received various awards for distinguished service and research in highway safety. He is proficient in the science of photogrammetry (making maps from photographs) and wrote a manual on the subject under a government grant.

His qualifications as an expert in the field of accident reconstruction are not challenged. On the contrary, defendant's counsel conceded in argument that he has a position of importance in the field of reconstructing accidents and referred to him as undoubtedly highly qualified. Nor are his conclusion and opinions challenged as far as accuracy and truth are concerned. The question is one of admissibility of expert testimony.

Mr. Baker was informed of the makes and models of the two vehicles involved and was given the directions and speeds of the vehicles testified to by their drivers. He examined all of the photographs taken by both parties, and made a visual inspection of the scene of the accident approximately ten months after the event. Based upon the foregoing and drawing upon his experience in the field of accident reconstruction, he was permitted to testify as follows: From the photographic evidence of damage, showing how the vehicles collapsed, he gave his opinion as to the relative positions of the two vehicles at the moment of initial impact and at the moment of maximum engagement and illustrated their positions with scale drawings, as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Mr. Baker testified as to the direction of the forces exerted against the vehicles at maximum engagement. The forces against plaintiff's automobile were from the front and obliquely toward the left from the right. This caused her automobile to spin or rotate during the collision and until it came to rest. The forces against the station wagon were from the front but also from the left, back toward the center of the wagon. He placed arrows in the illustration, above left, to indicate the direction of the forces exerted on plaintiff's automobile. Knowing that plaintiff's automobile rotated, and that defendant's station wagon did not rotate, and knowing the direction of the forces exerted against the vehicles, he could say approximately what relative positions the vehicles were in at their first contact.

Based upon the positions of the vehicles after they came to rest, and the principle of dynamics that the vehicle with the greater momentum will reverse the direction of movement of the vehicle with the lesser momentum and move it backwards in the direction from which it came, he concluded that the station wagon had considerably greater momentum and greater velocity or speed than plaintiff's automobile at the time of collision.

He explained how the rear ends of automobiles colliding tend to raise up, taking most of the weight off the rear wheels and greatly increasing the weight on the front wheels; that physical signs are often left on the surface of the road to indicate the area where the impact occurred and that typical signs are scrub marks of tires, made as a result of the unusual downward force on the front wheels during maximum engagement. He described a scrub mark in a bituminous road as a smearing of the bituminous material as a result of the application of heat, weight and friction; stated that a scrub mark is irregular in size, rather broad and dark, getting lighter as the car moves, with a bulge at one end. It tapers off as the force on the road diminishes and usually is not straight but slightly curved, varies in width and is generally oblique or diagonal to the road. Of the several black marks shown in the photographs he identified one of them as a scrub mark made during maximum impact of the vehicles and pointed out its characteristic qualities. It was his opinion that the scrub mark was made by the left front wheel of the station wagon, and not by any other wheel of the station wagon or by any wheel of plaintiff's automobile.

He explained why the debris was east of the point of maximum engagement, stating that debris, rust, road tar and mud, broken loose by shock, is moving and will continue to move in the direction in which the car is moving until it falls to the ground, in a trajectory; that when the forward movement of plaintiff's automobile was stopped by the superior force of the station wagon striking it, the debris in that split second did not have a chance to reach the ground before the automobile, then traveling backwards at a probable speed of 25 m.p.h., overtook the debris and batted it back. He explained that this phenomenon occurs in experimental crashes.

He expressed the opinion that during engagement plaintiff's automobile was traveling west nearly parallel with the road and that the station wagon was moving at an angle of 5 or 6 in a southeasterly direction. By photogrammetry he prepared an overlay to show the width of the road and its division into one-foot segments. Laid over the photograph depicting the portion of the road where the scrub mark appeared, the overlay demonstrated the center of the road (which did not have a painted center line). He testified that the overlay showed that the scrub mark started a foot and a half north of the center of the road; that the initial...