Mills v. Redwing Carriers, Inc.

• Decision Date: 03 March 1961
• Docket Number: No. 1988,1988
• Citation: 127 So. 2d 453
• Parties: Edith MILLS, Appellant, v. REDWING CARRIERS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 453

127 So.2d 453

Edith MILLS, Appellant, v.REDWING CARRIERS, INC., Appellee.

No. 1988.

District Court of Appeal of Florida, Second District.

March 3, 1961.

E. B. Rood, Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellant.

Vernon W. Evans, Jr. and Thomas C. MacDonald, Jr., Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellee.

ALLEN, Chief Judge.

The appellant, as plaintiff in the lower court, filed an action for damages for the wrongful death of her husband caused by the alleged negligence of defendant's driver in colliding head-on with a pickup truck being driven by plaintiff's decedent.The jury returned a verdict in favor of plaintiff and defendant filed a motion for new trial, which the court granted, on the ground that the court improperly permitted a state police officer to testify as to the alleged point of impact.

On February 17, 1959, after dark, the plaintiff's decedent was proceeding east in his pickup truck on State Road 60 about three miles east of Mulberry.The defendant's driver was proceeding west in a tractor-trailer petroleum carrier.The road was rough, it was raining and overcast.The vehicles collided and the left front fender of the pickup swerved to the right and stopped partially off of the south side of the pavement.The tractor-trailer veered to the right and stopped on the north side of the pavement with the cab portion jack-knifed thus pointing southeasterly across the pavement.

Two witnesses, Russell and William Edwards, brothers, were riding in an east bound automobile approximately 50 yards behind the plaintiff's decedent.Russell testified that he could see only the lights of the oncoming tractor-trailer; that he saw nothing unusual about the approaching vehicles; that the collision occurred and the vehicles parted; and that he could not say the defendant's vehicle was on the wrong side of the highway.

William Edwards testified that the pickup was in the proper lane; but on cross-examination he stated that he did not know exactly where the defendant's truck was at the time of the collision and that he did not see the tractor-trailer on the wrong side of the highway.

Dan Futch was called as a witness for plaintiff and testified concerning certain photographs that were offered in evidence without objection.Futch testified that he was a highway patrolman on the day of the accident; that he was called to the scene of the collision; that neither vehicle had been moved when he arrived; that there were some skid marks left by the jack-knifed tractor-trailer; that he did not note any skid marks left by the pickup truck; but that he did not know how to ascertain what tire left each skid mark.

After answering questions in regard to the photographs and the scene of the accident, Futch was questioned on direct by plaintiff's counsel and the following testimony was adduced:

'Q.Now, did you find any visible evidence in the highway, Officer, indicating the point of impact?A.Yes sir.

'Q.What was that physical evidence?A.There was a bunch of dirt and oil, or some water--some type of fluid.It looked like oil and water and dirt.

'Q.From that did you determine the point of impact?A.To the best of my ability, following the skid marks where they were turned in a southerly direction, and the skid marks--this oil and dirt and water was there.

'Mr. Evans: Just a minute.I don't know if he is going to answer this question.I don't think he has qualified himself to testify as to point of impact as an expert witness.

'Mr. Rood: They are allowed, from the debris and their investigation to state the point of impact, if there is physical evidence of it.Let me ask this question----

'Q.Could you determine, Officer, from the physical evidence, could you determine the point--point out the point of impact?A.Yes sir.

'Q.Would you tell us from the physical evidence where it was?

'Mr. Evans: To which the Defendant objects.Counsel has not shown the witness to be qualified to express and (sic) opinion about a matter about which he has no personal knowledge of.If he is an expert in these things, he can so qualify him.

'The Court: Objection overruled.

'A.Approximately two feet south of the center line in the eastbound lane.'

On cross-examination the witness Futch stated that he had attended an accident investigation school but that he was not a qualified expert on computing speed of vehicles from skid marks; that he was not an expert on ascertaining point of impact; and that his opinion as to point of impact in the instant case was based solely on the debris, oil and dirt on the highway, but that only a portion of the debris was shown in the photographs which previously had been introduced into evidence.Upon these admissions by the witness of his lack of professional qualifications the defendant's counsel made the following motion:

'Mr. Evans: Your Honor, I move to strike his testimony on the grounds he is not qualified to testify, sir.He has testified at this time to his lack of knowledge of where these marks, or how these marks are made.He has testified that was how this happened.I move to strike his testimony as to the point of where the accident occurred.He is not qualified, as he has just demonstrated----

'Mr. Rood: The weight of it all is for the Jury.

'The Court: I am going to overrule the objection.'

Clarence Bruce, an accident reconstruction expert, testified in plaintiff's behalf concerning the location of the vehicles but on cross-examination stated that he could not personally 'tell where on the highway they hit.'

Bob Kilgore, a highway patrolman, testified that he had been trained in determination of impact; and then he was asked whether that, based upon the debris in the road and other factors, did he agree with Trooper Futch as to the point of impact.Before he could answer the defendant objected, was sustained, and the question was withdrawn.

Raymond Jones, the driver of defendant's truck, denied that his rig jack-knifed prior to the collision; and stated that he was in the proper lane when he was struck headon by plaintiff's decedent's truck.

The lower court, in its order granting a new trial, held:

'This cause came on to be heard upon defendant's motion for new trial and one of the errors assigned is 'that the Court erred in allowing expert opinion testimony of plaintiff's witness, Dan Futch, Florida highway patrolman, as to the point of impact, meaning the place on the highway where collision occurred between the vehicles involved, over objection of defendant.'

'This was a case in which there were no eye witnesses as to the point of impact and the photographs introduced in evidence showed skid marks of defendant's automobile approaching the center line but not crossing the center line, and therefore the question of the point of impact became a pivotal question in the case.Based on the testimony of the highway patrolman a hypothetical question was then propounded to another expert and an answer elicited.

'It is the opinion of the Court that it would be error, but in most cases harmless error, to allow the highway partrolman to testify as to the point of impact in that this invades the province of the jury.SeePadgett v. Buxton-Smith Mercantile Co.[10 Cir.], 262 F.2d 39.However, it is the opinion of this Court that due to the facts of this case the error was harmful and therefore,

'It Is Ordered that the motion for new trial be, and the same is hereby granted to the defendant.'

It is from this order that the plaintiff has taken her appeal and urges before this court that the basis upon which the court granted the new trial had not been properly and timely preserved during the trial.We believe that the foregoing facts, testimony and objections considered in light of the broad discretion of a trial court in granting a new trial sustains the ruling of the trial judge.

The appellant next contends that the trial judge based his granting of a new trial on the ground that the improper testimony invaded the province of the jury whereas the objection during the trial was that the witness Futch had not been qualified as an expert.More specifically, appellant asserts that the trial court improperly granted a new trial on a ground not clearly raised by counsel for defendant when the objectionable testimony was sought to be introduced into the record.

When facts are within the ordinary experience of the jury, the conclusion from those facts will be left to them, and even experts will not be permitted to give conclusions in such cases.Mann v. State, 23 Fla. 610, 3 So. 207;13 Fla.Jur.Evidence, § 312.Expert testimony is admissible only when the facts to be determined are obscure, and can be made clear only by and through the opinions of persons skilled in relation to the subject matter of the inquiry.Consequently the opinion of an expert should be excluded where the facts testified to are of a kind that do not require any special knowledge or experience in order to form a conclusion, or are of such character that they may be presumed to be within the common experience of all men moving in ordinary walks of life.SeeMillar v. Tropical Gables Corp., Fla.App.1...