Hughes v. Vestal, 453

• Decision Date: 02 June 1965
• Docket Number: No. 453,453
• Citation: 264 N.C. 500,142 S.E.2d 361
• Court: North Carolina Supreme Court
• Parties: Tommy Edward HUGHES, by his Next Friend, C. E. Hughes, v. Paul David VESTAL and Donald Wayne Vestal.

Page 361

142 S.E.2d 361

264 N.C. 500

Tommy Edward HUGHES, by his Next Friend, C. E. Hughes, v. Paul David VESTAL and Donald Wayne Vestal.

No. 453.

Supreme Court of North Carolina.

June 2, 1965.

Walser, Brinkley, Walser & McGirt, Lexington, for plaintiff.

Jordan, Wright, Henson & Nichols, Greensboro, and Hubert E. Olive, Jr., Lexington, for defendant Donald Wayne Vestal.

MOORE, Justice.

We first consider plaintiff's appeal.

Plaintiff contends that the court erred in the admission of certain evidence bearing on the contributory negligence issue. The jury resolved that issue against plaintiff, thereby precluding any recovery of damages by him. Defendant alleged, inter alia, that plaintiff's speed at the time he first became aware of the presence of the Vestal car was in excess of the maximum speed limit of 55 miles per hour. There was no specific testimony as to plaintiff's speed other than the testimony of plaintiff himself. Plaintiff fixed his speed at 50 to 55 miles per hour. There was, however, testimony that plaintiff's car left 230 feet of tire marks--145 before reaching the point of collision, and 85 from that point to the place the car came to rest. For proof of excessive speed, defendants offered and the court admitted in evidence, over the objection of plaintiff, a chart entitled 'Stopping Distance from Different Speeds with Good Brakes'--the back page of the 1959 'Driver's Refresher Handbook of Traffic Laws and Highway Safety,' published by the North Carolina Department of Motor Vehicles. Plaintiff also objected to the following procedures: (1) Counsel for defendants, referring to the chart, stated to the jury, '* * * fifty miles per hour, driver sees danger, 55 feet driver's thinking distance; driver applies brakes 156 feet; vehicle braking distance, 211 feet car stops here.' (2) The court instructed the jury as follows:

'The Court allowed the defendant to introduce in evidence the back page of the driver's license instruction book with which many of you are familiar. In two recent cases our Supreme Court referred to this manual, so this Court allowed it to be introduced into evidence; and the defendant brought out from a chart which appears therein which appears to show the average stopping speed under average conditions, including road conditions, tire conditions, car conditions, taking into consideration that as to a car with good brakes and different road conditions, the average stopping speed from braking time when driver first sees danger when traveling at fifty miles an hour was 211 feet, including 55 feet reaction time or thinking time of driver and getting his foot on the brakes, and 156 feet for braking time. I instruct you that you will consider this along with all the other evidence, remembering that this is just evidence as to the average that some persons have found and have put in this chart--the average distance that a car with good brakes would stop under average road conditions.'

Plaintiff's objections were well taken; the chart is incompetent and its admission in evidence was clearly improper and prejudicial.

In the first place, no foundation was laid for the introduction of the chart. It was not identified, verified or authenticated by witness or other recognized method. Stansbury: North Carolina Evidence (2d Ed.), ss. 153, 195, pp. 379-381, 512, 513. Furthermore, the chart does not qualify as an 'experiment,' as that term is ordinarily understood in the law of evidence. '* * * an experiment ordinarily involves the reenactment of an occurrence under circumstances substantially similar to those which attended the actual occurrence, and for the experiment to be competent those attending circumstances must be understood and simulated with reasonable certainty. * * * The experiment should speak for itself and be complete within itself. 'To be admissible in evidence * * * the result of the experiment must have a legitimate tendency to prove or disprove an issue arising out of such occurrence.'' Perfecting Service Co. v. Product Development Sales Co., 259 N.C. 400, 412, 131 S.E.2d 9, 19. An experiment is introduced in evidence by the testimony of the experimenter. Some courts have declared that reaction time or the distance required to stop a given vehicle at a given speed under given conditions of road surface is a proper matter for expert opinion. Young v. Patrick, 323 Ill. 200, 153 N.E. 623; Knight v. Knight, 52 Wash.2d 219, 324 P.2d 797; Mathews v. Carlson, 130 So.2d 625 (Fla.App.). There were no expert witnesses in the instant case and no one testified even by reference to the chart. An expert witness must be better qualified than the jury to draw appropriate inferences from the facts, and his testimony must be based on sufficient data. Stansbury (2d Ed.), s. 132; Perfecting Service Co. v. Product Development Sales Co., supra. Courts look with disfavor upon attempts to reconstruct traffic accidents by means of expert testimony, owing to the impossibility of establishing with certainty the many factors that must be taken into consideration. Shaw v. Sylvester, 253 N.C. 176, 116 S.E.2d 351. However, in State v. Gray, 180 N.C. 697, 104 S.E. 647, expert testimony as to the distance within which a certain truck could be stopped when going at a certain rate of speed was held admissible. But, of course, an unauthenticated chart purporting to show absolute stopping distances is not expert 'testimony' (evidence).

Without regard to the lack of proper formality in authenticating and presenting the information contained in the chart, we pass to the consideration of the information itself. The court charged that the chart 'appears to show the average stopping speed under average conditions, including road conditions, tire conditions, (and) car conditions.' Further: 'I instruct you that you will consider this along with all the other evidence, remembering that this is just evidence, as to the average that some persons have found and have put in this chart--the average distance that a car with good brakes would stop under average road conditions.' Defendant-appellee contends that the court properly permitted the jury to consider the chart as a guide. There is nothing upon the face of the chart to indicate upon which data the stopping distances are based or that it involves average conditions. But assuming that the stopping distances shown are the result of average conditions, we are at a loss to perceive how they would furnish guidance in a particular case. The chart shows nothing but rates of speed, reaction time and braking distances. It does not indicate what an average driver, car, tire, brake or roadway is. What are the characteristics of the average driver? What is the weight of the average motor vehicle? What is an average tire? What kind and in what condition are 'good' brakes? What is the composition and condition of an average roadway? The chart does not answer these questions. It furnishes no specific standards by which the facts of a particular case may be evaluated. The parties have had no opportunity to examine and cross-examine those who furnished the data and made the chart to determine its relevancy, if any, to the facts in the case under consideration.

The weight of authority is that charts and tables of stopping distances are incompetent and inadmissible. Such charts are, we assume, based upon experiments conducted by many different motor vehicles and drivers at different times and places. The information contained in the charts are undoubtedly of value in driver education. But in courts of law it is pure hearsay. The factors involved in stopping automobiles are so many and varied that a fixed formula is of slight, if any, value in a given case. The weight of the vehicle, type and condition of tire tread, type and condition of brakes, force with which brakes are applied, type and condition of roadways, and differences in reaction time among individual drivers, are some of the variable factors. A formula, in which so many components are variables and in which there is only one constant (rate of speed), cannot by projection of a positive result (distance), based on speculative averages, be of sufficient accuracy and relevancy to rise of its own force to the dignity of evidence in an actual set of circumstances. This and its hearsay character have led to its rejection as evidence in a large majority of the jurisdictions where the question has been directly raised. Muse v. Page, 125 Conn. 219, 4 A.2d 329; McDonald v. Mulvihill, 84 N.J.Super. 382, 202 A.2d 213; Smith v. Hardy, 228 S.C. 112, 88 S.E.2d 865; Breshears v. Myers, 266 S.W.2d 638 (Mo.); Tuite v. Union Pacific Stages, 204 Or. 565, 284 P.2d 333; Lemons v. Holland, 205 Or. 163, 284 P.2d 1041, 286 P.2d 656 (Or.); Thedorf v. Lipsey, 237 F.2d 190 (CC, 7 Cir.). However, there are decisions to the contrary. Steffes v. Farmers Mutual Auto. Ins. Co., 7 Wis.2d 321, 96 N.W.2d 501; Mainz v. Lund, 18 Wis.2d 633, 119 N.W.2d 334. There are also some cases in which the tables have had appellate application or have been referred to with intimation of approval. Dupre v. Union Producing Co., 49 So.2d 655 (La.App.); Wilson v. Williams, 82 So.2d 71 (La.App.); Autrey v. Swisher, 155 F.2d 18 (CC, 5 Cir.). We adopt the majority view and hold that the published tables of stopping distances are inadmissible.

The effect of the ruling of the judge below was to take judicial notice of the information contained in the chart. In a great majority of cases, in which the problem has been presented, the courts have ruled in favor of taking judicial notice of reaction time and stopping distance. But in the overwhelming majority of these cases the courts...