Miller by Miller v. Stiglet, Inc., 57374

Decision Date16 March 1988
Docket NumberNo. 57374,57374
PartiesCharlene L. MILLER, by her next friend, Gail MILLER, Thomas J. Miller, Glen Miller and Tommy Jean Eckert 1 v. STIGLET, INC.
CourtMississippi Supreme Court

W. Harvey Barton, John L. Hunter, Cumbest, Cumbest & Hunter, Louis Fondren, Pascagoula, for appellants.

James H. Heidelberg, Bryant, Stennis & Colingo, Pascagoula, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and ZUCCARO, JJ.

PRATHER, Justice, for the court:

This appeal addresses the propriety of accident reconstruction testimony from police officers and to what extent an expert in accident reconstruction may give his opinion. The appeal is from a jury verdict in the Circuit Court of Jackson County in favor of the defendant, Stiglet, Inc., on the claims of the plaintiffs for personal injury and wrongful death. Suit was filed on February 16, 1984, and trial was held before the new Mississippi Rules of Evidence went into effect. On appeal, the following has been assigned as error:

(1) The trial court erred in allowing officers Mike Byrd and Bill Dillion to testify and give improper prejudicial opinion testimony as to the cause of the plaintiffs' accident, over plaintiffs' objection, entitling plaintiffs to a new trial.

(2) The trial court erred in allowing, over the objection of counsel for the plaintiffs, jury instruction DS-11 to be submitted to the jury regarding driving within the specified speed limits.

I.

On February 16, 1984, Charlene L. Miller and others filed a complaint alleging, inter alia, that Stiglet, Inc. had a contract with the Mississippi State Highway Department for the purpose of sandblasting and painting the Escatawpa River bridge; that the work was discontinued on April 20, 1979; that on the morning of April 23, 1979, Miller, her two minor children and a neighbor's child, were riding in her car crossing the bridge in a safe and reasonable manner; that suddenly and without warning the car hit sand or paint left by Stiglet, which as a result of rain, caused the road surface to be extremely slick; and that Stiglet, was negligent in failing to properly clean off the bridge or in failing to inspect or give warning to the traveling public, thereby causing personal, physical and emotional injury to Miller and the death of all the children.

Miller testified that she left home about 7:00 a.m. o'clock, to take the children to school and stopped to get gas. Coming to the bridge, she noticed a bad place in the road and paint all over the bridge. Approaching the bridge at 20 miles per hour, her car started skidding from side to side, ultimately plunging into the river through a narrow opening in side of the bridge just large enough for a car to enter. She further stated that her car did not start sliding until she hit the bad paint place and the greasy place on the bridge.

On cross-examination, Miller's deposition was introduced, wherein she twice stated that she was going about 15 miles per hour as she approached the bridge, but the deposition twice contains the handwritten addition "or not over 30 mph," with Miller's initials. She also stated on deposition that she went into a big skid as soon as she hit a big bump or hump at the beginning of the bridge.

Records of the State Highway Department were admitted into evidence, showing that all operations of Stiglet were ceased on Friday, April 20, 1979, while the accident did not occur until three days later.

The plaintiffs then called Mike Byrd as an adverse witness. At the time of the accident, he was a patrolman in the traffic division and had been so for approximately one year. He and another officer were the first to arrive on the scene, he rescued an unconscious Charlene Miller from her car in the river, and they revived her. He observed sand on the bridge, thicker in some places than in others, with an inch deep rut in the sand on one side of the bridge. He also found "yaw" marks at the north end of the bridge that indicated skidding of a tire before the hump where the asphalt and concrete come together.

On cross-examination, Byrd stated that a yaw mark is made by a tire spinning not forward, but in a sliding motion from side to side. The yaw mark that he observed was located before the car arrived at the superstructure or the steel portion of the bridge. He observed no paint on the bridge and no sand near the first hump.

As to his qualifications as an accidentologist, Byrd further testified that he has attended special schools concerning accident reconstruction and accident investigation, including the Northwestern Traffic Institute Accident Investigation School, from which he received a certificate of graduation. He had fourteen years experience as a police officer, during twelve of which he had worked accidents, investigating between four hundred and six hundred accidents. Initially, the trial court sustained the objection to Byrd testifying as an expert in accident reconstruction. After extensive argument on the point outside the presence of the jury, the trial court permitted Byrd to give expert opinion testimony, based on Hollingsworth v. Bovaird Supply Co., 465 So.2d 311 (Miss.1985). The court found that Byrd's training and years of experience qualified him to give his expert opinion in this case. Afterwards, on voir dire examination, Byrd stated that he did not make any measurements of skid marks or any other measurements at the accident scene.

The cross-examination then continued, with Byrd stating, "After looking at the road conditions, the weather conditions, and the equipment on the car, it was determined to me that the cause of the accident was the rain, the slick tires on the car, and speed." He observed there was just wet pavement, but no paint or sand between the bump and the bridge, and that all of Miller's tires were slick.

In his opinion, the vehicle rounded the curve approaching the bridge exceeding the speed limit, which was 30 mph, and hit the first hump which caused her car to come up in the air. When she came back down, her vehicle skidded over to the left lane from her tires being slick. She then struck the superstructure of the bridge on the right and then again on the left across from the point where the car left the bridge. Byrd again gave his opinion that Miller exceeded the posted speed.

On redirect, Byrd stated that he was not at the accident scene, did not know what speed she was driving and had never talked with her about her speed.

On recross, Byrd stated that he determined from the angle of the car from the second point of impact to the place it went off the bridge that Miller had lost control of the car before approaching the spot of sand and that she never went over any sand.

The plaintiffs next called George William Douglas, a Professor and Chairman of Mechanical Engineering at the University of South Alabama. He was tendered as an expert in the field of Mechanical Engineering without objection. It was his opinion that sand located on a concrete bridge would affect one's ability to control that automobile under the conditions as described. An attempt to regain control or keep control of a car would be made extremely more difficult. Douglas further testified that from his experience, to establish the speed of a vehicle before an accident happened, one needs physical evidence such as the presence and type of skid marks, measurements of the skid marks and, if possible, statements by witnesses as to the sequence of events and location of object at given times. In his expert opinion, if there were no witnesses as to the speed, or any evidence of skid marks, or any measurements of any distances from where the car started with a particular motion, and where it stopped, he could not give an opinion as to the mechanics of what happened in a particular accident, nor did he know of anyone who could give an opinion with any reasonable certainty. He could not form an opinion as to the causative factors that created the accident without measurements and some other points indicating contact.

On cross-examination, Douglas admitted that it would be better for him, if he arrived at the scene right after the accident, to see how slick the road was, how hard it was raining, how much sand was on the road, and the condition of the car and tires. Douglas further stated that he had never personally investigated any accidents on the scene. Douglas also admitted that he was not qualified as an accident reconstructionist.

For the defendant, Stiglet called Bill Dillion, employed with the State Highway Patrol for the past thirty years. He had accident investigation instruction at the Mississippi Highway Patrol Academy, at the Northwestern Traffic Institute and from several other instructors. For thirty years, he worked and developed the facts and causations in a thousand plus separate accidents. Plaintiffs' counsel made a continuing objection as to any opinion testimony given by this officer. He testified as to his observations at the accident scene. After the ambulance left, he inspected the surface of the roadway and found that it was rainy and had been misting rain. He walked the bridge and saw sand on the sides of the bridge, and inspected the vehicle and saw the tires, noticing that the back ones were slick. Dillion's opinion as to the cause of the accident was as follows: "First, wet road. Two, slick tires. Three, speed." He went over the road surface several times and did not notice any paint, nor did he see any sand on the bridge that in any way contributed to the accident.

On cross-examination, Dillion stated that he never talked to Miller or any other witness, that he did not see the accident, that no one told him the speed of the car at the time of the accident, and that he did not see the sand that Officer Byrd saw and marked.

Several photographs of the bridge, taken right after the accident, were admitted into evidence and used during examination of both police officers. These photographs...

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