Long v. Gilchrist, No. 50024

• Court: United States State Supreme Court of Iowa
• Writing for the Court: PETERSON; LARSON; OLIVER; THORNTON
• Citation: 251 Iowa 1294,105 N.W.2d 82
• Parties: Connie Jo Ann LONG, Administratrix of the Estate of Bert Long, Appellee, v. Charles H. GILCHRIST, Appellant.
• Decision Date: 20 September 1960
• Docket Number: No. 50024

Page 82

105 N.W.2d 82 251 Iowa 1294 Connie Jo Ann LONG, Administratrix of the Estate of Bert Long, Appellee,
v.
Charles H. GILCHRIST, Appellant. No. 50024. Supreme Court of Iowa. Sept. 20, 1960.

[251 Iowa 1296]

Page 83

Karl W. Fischer, Jr., Bordewick & Fischer, Vinton, James W. Crawford, Franken, Keyes, Crawford & Bradley, William R. Eads, Cedar Rapids, for appellant.

Kildee, Keith & Gallagher, Waterloo, for appellee.

PETERSON, Justice.

This is an action for damages by the administratrix of the Estate of her husband, Bert Long. He lost his life in an automobile collision on paved Highway 101, about one mile north of the city of Vinton.

Long was traveling north on the highway about 10:40 a. m., on June 22, 1958. Monti Keller, also killed, was with him.

A gravel road entered the highway from the east. This formed a T intersection, and was the point of collision.

Defendant approached the highway in his 1941 Chevrolet, and stopped 4 or 5 feet from the paving. He testified he looked north and south and saw nothing. He then proceeded onto the highway slowly and turned his car south on the west side of the road.

Bert Long reached the intersection immediately after defendant drove on the highway. The left front end of the Long car struck the left rear corner of defendant's car. While it damaged defendant's rear left fender, and knocked off part of

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his bumper and light lens, yet defendant testified: 'a car came along and struck the back end of my car a slight blow. * * * I felt the fellow hit me, but I didn't think it amounted to anything'. He proceeded on into town without stopping.

The collision was sufficient to cause Long to lose control of his car. He turned toward the right on the gravel, at which point Mr. Keller was thrown out. His car then proceeded northeast, knocking over 4 or 5 guard posts. 313 [251 Iowa 1297] feet from point of impact the car rolled into a ditch 15 feet deep, coming at rest on its top.

The jury returned a verdict of $23,531.50 against defendant. Motion for judgment notwithstanding verdict, and for new trial were both overruled. Defendant has appealed.

He assigns 3 errors. Admission of opinion evidence of Highway Patrolman Lloyd Patterson; submission of Instruction 12 as to question of control of car; and misconduct of jury in connection with consideration of alleged extraneous evidence.

I. Patrolman Patterson arrived at the scene a short time after the collision. He had been in the highway patrol service 12 years, and had investigated between six and seven hundred automobile collisions.

He testified: 'I found the dirt, and debris mixed with the dirt, taillight lens and pieces of taillight lens at the beginning of the skid marks. * * * Q. * * * can you determine the course of the Long car as you determined it on that day? * * * A. * * * to the northeast and into the ditch that runs along No 101.

'Q. * * * Officer Patterson, from your observation on that day and your experience and training investigating automobile accidents, do you have an opinion as to where the point of impact was? (no objection) A. It is my opinion that the point of impact was five feet east of the center line of No 101 and exactly twenty feet east of the south guard rail anchor post.' (This post appears in the exhibits about opposite the south edge of the gravel road.)

Appellant's contention is that while the witness had a right to describe the physical conditions as he saw them, he had no right to draw any conclusions, nor offer any opinions, as to where the contact between the two cars occurred, nor what the skid marks showed as to the direction of the car from the point of contract to its destination in the ditch.

It is obvious the opinion rested on physical facts, clearly described by the witness.

The admission of the opinion evidence of Officer Patterson, under the facts in this case, rests in the discretion of the trial [251 Iowa 1298] court. We will not interfere unless such discretion is abused. We hold the discretion was not abused in the instant case. Grismore v. Consolidated Products, 232 Iowa 328, 342, 5 N.W.2d 646, 654; Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 29 N.W.2d 204, 210; Waterloo Savings Bank v. Waterloo, 244 Iowa 1364, 1374, 60 N.W.2d 572; Brower v. Quick, 249 Iowa 569, 88 N.W.2d 120, 125; Also...