Kleinsasser v. Gross

• Decision Date: 28 July 1964
• Docket Number: No. 10089,10089
• Court: South Dakota Supreme Court
• Parties: Lydia KLEINSASSER, as Special Administratrix of the Estate of John E. Kleinsasser, Deceased, Plaintiff and Appellant, v. Rodney GROSS, by William Gross, his Guardian Ad Litem, Defendant and Respondent.

Page 717

129 N.W.2d 717

80 S.D. 631

Lydia KLEINSASSER, as Special Administratrix of the Estate of John E. Kleinsasser, Deceased, Plaintiff and Appellant, v. Rodney GROSS, by William Gross, his Guardian Ad Litem Defendant and Respondent.

No. 10089.

Supreme Court of South Dakota.

July 28, 1964.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellant.

Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and respondent.

BIEGELMEIER, Presiding Judge.

On a Sunday afternoon John E. Kleinsasser was driving a Chevrolet station wagon in an easterly direction on a graveled road one mile south of Freeman, South Dakota. His daughter Orlene sat in the seat beside him; immediately behind him was Mrs. Floyd Wipf, his wife's sister; to her right Lydia Kleinsasser, his wife, and to her right Sherry Kleinsasser, his 15-year-old daughter. Behind that seat rode Kenneth Wipf, Mrs. Wipf's son. About that time a Chevrolet station wagon driven in a westerly direction by defendant Rodney Gross, age 16, approached the top of a knoll on this road which defendant described as a 'roller coaster road'. Mary Jo Tschetter, age 15, was a passenger in this vehicle. The two cars collided as a result of which five of the passengers in the two cars were killed. Mrs. Wipf, Mrs. Kleinsasser and defendant Rodney Gross survived. This action by Lydia Kleinsasser, as special administratrix of the estate of John E. Kleinsasser, deceased, was brought against Rodney Gross. To the complaint defendant filed an answer and counterclaim and upon a trial the jury returned a verdict denying damages to both plaintiff and defendant. Plaintiff made a motion for a new trial which was denied and this appeal resulted.

The principal error asserted is the admissibility of the testimony of an expert witness and certain plats and exhibits in evidence which in effect attempted to reconstruct the accident.

Expert opinion as to the ultimate fact in issue has many facets. The general rule denying admissibility is stated and criticized in 11 R.C.L., Expert and Opinion Evidence, Sec. 14, and discussed without the criticism, in 20 Am.Jur., Evidence, Sec. 775, et seq. We have held admissible a doctor's opinion a disease was incurable and a nurse would not be able to carry on her profession, Robinson v. New York Life Insurance Co., 69 S.D. 30, 6 N.W.2d 162, and the opinion of a professor of science as to the point of impact on a power pole made by a speeding auto in free flight after leaving the road grade, Wentzel v. Huebner, 78 S.D. 481, 104 N.W.2d 695. As to that the opinion stated, 'Our study of the evidence has convinced us that the opinion but stated what appears as an undisputed fact.' His testimony of the minimum speed required for such flight was held proper as fixing more accurate computations than a jury could make, even though it was indicative of excessive speed to a lay mind. Inertia, gravity and other physical laws were involved. However, it was recognized a patrolman's evidence that defendant could not have driven the road as claimed, though subject to many variables, was within the range of common experience; thus, his opinion was inadmissible and properly rejected, even though he was familiar with the road and drove over it soon after the accident.

It has been the practice of trial courts to admit in evidence rough sketches showing the locations of vehicles after an accident. These have been prepared by witnesses who were involved in the accident or officers who arrived at the scene shortly thereafter; they are generally supported by measurements, debris, skid and slide marks on the road traced to and identified as made by vehicles. See State v. Aarhus, S.D., 128 N.W.2d 881; Stygles v. Ellis, S.D., 123 N.W.2d 348. ¹ Observation of some tire marks by a sheriff who arrived at the scene with a patrolman shortly after the accident, without observing any other physical facts, was held to be insufficient foundation to enable him to form, or testify to, an opinion as to the place on the road where the vehicles collided. Fryda v. Vesely, S.D., 123 N.W.2d 345.

The challenged evidence was that of defendant's expert witness, Dr. Ronald Nelson, a college professor of physics and engineering consultant. He had studied at Iowa and Princeton Universities, M.I.T. and other colleges and was in charge of a laboratory at the college doing a wide variety of testing and investigating problems of a technical nature for business and hospitals. He held Ph.D. degrees in physics, mathematics and science. The investigative work related to automobile accidents, and studies of bodies in motion, momentum, velocities and dynamics. He testified that the type and amount of damage to the cars, their final resting place, the nature of the debris and direction it was thrown, gouge marks or scratches on the highway are all factors to be taken into consideration. He went to the scene four days after the accident, observed the terrain, took measurements of the 'lay of the land,' distances involved, studied the marks left on the gravel road and then inspected the automobiles which by that time had been moved to a junk yard.

He took sixteen pictures of the cars at the yard and one of the road. These, with five taken by the sheriff at the scene of the accident shortly after it occurred, were introduced in evidence and posted on a bulletin board in front of the jury. Exhibits 1, 2 and 3 were enlarged photos taken by a newsman at the scene. In one the Kleinsasser car was in the position it came to rest after the accident. The Gross car had been towed away by a neighboring former as it started to burn and had to be moved. The witness pointed out and commented on the damages to and the location of the cars etc. on these exhibits. Exhibits L and M are each small cardboard 'planned' views of the Gross and Kleinsasser cars showing the front parts, wheels and tires bent out of shape. They were offered and received for 'illustration only'. Using these the expert then demonstrated the angle at which they indicated to him the two vehicles were at the instant of impact. His counsel stated 'This is without respect to where they were on the highway.'

The witness then identified Exhibits N, O and P which he had prepared. These were planned views of the highway drawn to scale on a large cardboard. Each showed the edges of the gravel road by a black line with dotted lines indicating the middle. On Exhibit N of the series the witness had drawn outlines showing the two cars as Exhibits L and M in their planned resting places. He testified the Kleinsasser car was in the same position on Exhibit N as shown by plaintiff's enlarged photo, Exhibit 1; he placed the Gross car on the plat by the evidence of one of plaintiff's witnesses and burned marks on the road shoulder. Exhibit O represented a blank planned view of the highway showing only the edges in black and a dotted center line. Admission of the exhibit was gained by defense counsel's assurance he would 'hook it up' later. Using Exhibits L and M 'to determine where the two cars may have come together initially and at what angle', the witness was first permitted to use Exhibits L and M, the car representations, and move them about on Exhibit O to show the angle of the vehicles to each other at the point of impact 'Without regard for position on the highway'. Reference herein to the position of the cars to each other as to the angle and point of impact will, for purposes of clarity, be referred to as point of impact, their location on the road as place of impact. We will return to this point of impact claim of error later in the opinion.

After having introduced this evidence, the trial court permitted the witness to consider the various possibilities of points of impact and from this to lead up to where on the road the two cars were at the time of impact. Exhibit P, the last of this series, purported to show 'the position of the automobiles on the highway at the point of initial contact' between them. Defense counsel stated 'These exhibits were all offered for the same purpose of illustrating the testimony of this man who is qualified.' The witness was then permitted to place Exhibits L and M over their facsimiles appearing on Exhibit P and demonstrate the movement of the two vehicles following the impact until their final resting place. This evidence was objected to as without proper foundation and invading the province of the jury.

After the collision the Kleinsasser car was facing nearly south with its front wheels about seven feet from the south edge of the road. The Gross car was facing southwest with its front wheels on the south shoulder. The front of the Kleinsasser car was about six inches from the side of the Gross car with a larger space at the rear, leaving an area described as a V between them. There was a gouge near a front wheel of the Kleinsasser car. All the debris and marks were on the south half of the road and none on the north half

The oral testimony as to this was undisputed and the photographs are in accord with it. There was neither evidence of skid or tire marks nor evidence attributing them to either car to support the expert's opinion, had it then been admissible, nor was the gouge mark of any aid to him in locating their positions. In answer to a question whether he had an opinion what caused the gouge based on the testimony he heard in this courtroom, his study of the photographs and the accident scene, he said:

'It's my opinion that this gouge mark may have been caused by any portion of the front end of the Kleinsasser vehicle, or the Gross vehicle, which was pushed down in the collision. It may have been part of the 'A' frame, the frame itself, the wheel, one of the wheels being pushed sideways, a broken piece of metal. These are all things that cause gouge marks in collisions.'

Without knowing what part of which car caused the gouge, and relying on the type of damage, the final resting...