Peterson v. National Carriers, Inc., WD54169

• Decision Date: 14 April 1998
• Docket Number: No. WD54169,WD54169
• Parties: James F. and Jackie PETERSON, Appellants, v. NATIONAL CARRIERS, INC., Respondent.
• Court: Missouri Court of Appeals

Page 349

972 S.W.2d 349

James F. and Jackie PETERSON, Appellants, v. NATIONAL CARRIERS, INC., Respondent.

No. WD54169.

Missouri Court of Appeals,

Western District.

April 14, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 2, 1998.

Application for Transfer Denied

Aug. 25, 1998.

G. Spencer Miller, Christopher L. Heigele, Kansas City, for appellants.

Philip R. Dupont, Robert S. Bruer, Blackwell Sanders Matheny Weary & Lombardi LLP., Kansas City, for respondent.

Before LAURA DENVIR STITH, P.J., and HANNA and RIEDERER, JJ.

LAURA DENVIR STITH, Presiding Judge.

Mr. Peterson, the plaintiff below, appeals the trial court's entry of judgment on a jury verdict finding him 80% at fault in a traffic accident. He claims that the court erred in its admission of defendant's expert witness' testimony because that testimony was based in part on inadmissible hearsay. We disagree. An expert is allowed to rely on hearsay to support the expert's opinion where, as here, the expert testifies that the evidence is of a sort reasonably relied on by experts in the field and the trial court does finds that the evidence is otherwise reasonably reliable.

We also disagree with plaintiffs' argument that the expert improperly offered his opinion as to the point of impact of the vehicles. To the contrary, the expert simply noted and relied on the places where Mr. Peterson and Mr. Harrison, a defendant, said were the point of impact in making measurements and calculations as to speeds and distances. He did not offer his own expert opinion on those issues. Moreover, once the court said it would rule on specific opinions as they came in, plaintiffs did not object to any of the subsequent specific opinions offered on the basis that they constituted improper point of impact testimony.

We additionally reject the arguments that the expert improperly attacked Mr. Peterson's credibility simply by calculating speeds and distances based on Mr. Peterson's explanation of events and that testimony about such speeds and distances was irrelevant and immaterial. We think it was relevant to the issues of causation and negligence, and that the expert did not improperly use these calculations as the basis for his own conclusions as to Mr. Peterson's credibility, but rather left the issue of credibility to the jury.

Finally, we reject Mr. Peterson's claim that the court erred in admitting as an exhibit the investigating officer's diagram of the scene of the accident. Assuming it was only conditionally admitted, as plaintiffs argue, plaintiffs never moved to strike the exhibit once it became evident that defendant would not call the investigating officer. Moreover, the exhibit was the type of evidence which would have been admissible if the officer had testified, and was simply cumulative of other properly admitted exhibits and testimony. As a result, no prejudice could have resulted from its admission. For all of these reasons, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 29, 1994, at around 5:00 a.m., a rear-end collision occurred between two eighteen-wheel trucks traveling in the eastbound lanes of Interstate Highway 70 (I-70) in Saline County, Missouri. Wesley Harrison was the driver of a truck owned by National Carriers, Inc. traveling down I-70. Mr. Harrison's truck collided with the back of Mr. Peterson's truck shortly after Mr. Peterson's truck merged onto I-70 from an on-ramp. The impact of the collision scattered lumber being carried in Mr. Peterson's tractor-trailer over the highway and surrounding area, threw his truck's engine into the radiator, and caused serious injuries to Mr. Peterson. A Highway Patrol Officer investigated the scene and made a report which included photographs of the scene and a diagram indicating his observations at the scene.

Mr. Peterson filed a Petition for damages on January 18, 1996, naming National Carriers, Inc. and Mr. Harrison as defendants. ¹ On November 26, 1996, Mr. Peterson filed a Second Amended Petition, adding his spouse, Jackie Peterson, as a party plaintiff and claiming Ms. Peterson suffered a loss of society, services, companionship, and consortium.

At trial, Mr. Peterson called Mr. Harrison. Mr. Harrison testified that after impact the two vehicles traveled between two-tenths to a quarter of a mile to their resting place. Using Defense Exhibit 61, an aerial photograph of the area where the wreck occurred, Mr. Harrison marked his estimates of where the wreck occurred, where his truck was located when he saw Mr. Peterson's vehicle approximately two seconds before impact, and where his truck was located when he saw a third vehicle ahead of him in his lane about ten seconds before impact. Mr. Harrison also verified that Defense Exhibit 62, a photograph of the accident scene, was a fair and accurate representation of the position of the vehicles after they came to rest.

Plaintiffs also called Patrick Medley, a co-worker of Mr. Peterson. Mr. Medley was driving a separate truck that was leading Mr. Peterson at the time of the accident. Using Exhibit 61, Mr. Medley pointed out the spot where the vehicles came to rest. Mr. Medley also testified that on the afternoon of the accident, after the vehicles had been removed, he saw skid marks on the road. He identified these marks as those indicated in photographs introduced as Defense Exhibits 10 and 11.

Mr. Peterson also utilized Exhibit 61 in his testimony. After initially indicating that the point of impact was the place that had already been marked as such during Mr. Harrison's testimony, Mr. Peterson later explained that because of where the materials from his truck landed, the point of impact was, in fact, in a different spot, which he marked on Exhibit 61. He also identified the place on Exhibit 61 where the vehicles finally rested and used Exhibit 61 when indicating that skid marks from the accident were still on the shoulder of the road.

Defendant National Carriers offered the testimony of Dr. Bruno Schmidt, a professor with a Doctorate degree in physics, as an expert in accident reconstruction. Dr. Schmidt based his opinions given on direct and cross-examinations on depositions of Mr. Peterson and Mr. Harrison; on Exhibit 69, which was a copy of the Highway Patrol Officer's report and diagram on which the patrolman's estimate of the point of impact had been redacted, leaving only the patrolman's personal factual observations on the diagram; on a discussion with that officer; and on his own investigation of the area where the accident took place. Dr. Schmidt testified that measurements taken by officers investigating accidents are the type of observations upon which experts in the field of accident reconstruction rely. He also testified that Exhibit 69 was a fair and accurate representation, although an enlarged (and redacted) version, of the officer's diagram on which he had relied.

Defense counsel offered Exhibit 69 into evidence. Plaintiffs' counsel objected, arguing that the exhibit was hearsay and could not be "bootstrapped" into admissible evidence simply because an expert relied on it. When defense counsel indicated that the officer who prepared the report was subpoenaed to testify, the court ruled, "For the purposes of what this [expert] witness has said, that he relied upon what is contained within the document it will be received over the objection for that purpose only, that this witness relied upon it." Ultimately, defense counsel did not call the highway patrolman who had made the diagram to testify.

Mr. Peterson's attorney asked that it be made clear that Dr. Schmidt was not to offer his opinion about point of impact. Defense counsel said he would not be asking about point of impact, but that his expert would testify from "another basis." The court stated, "I'll rule them as they come, then, gentlemen." When Dr. Schmidt's testimony resumed, he stated, over hearsay objection, that he had talked with the investigating officer, that the officer told him he observed gouge marks in the pavement, that the officer did not tell him he observed skid marks, and that he relied on the officer's information in reaching his opinions.

Dr. Schmidt also utilized Exhibit 71, a large aerial photograph of the area where the accident occurred, during his testimony. Exhibit 71 indicated the places where Dr. Schmidt had personally viewed and measured various bits of evidence, such as "gouge marks." Dr. Schmidt also copied onto Exhibit 71 various points which had been identified by witnesses testifying about Exhibit 61. For instance, he noted that the gouge marks were located at the same point that Mr. Harrison had identified as the place of the wreck on Exhibit 61. He also marked, on Exhibit 71, the location of an overpass; the distance from the overpass to the beginning of the merge lane; the distance to the end of the merge lane from the overpass; and the distance from the overpass to the final position of the vehicles after the accident.

Dr. Schmidt then offered his opinion as to how long it would take a vehicle traveling at different speeds to travel from one location on Exhibit 71 to another and how long it would take at different speeds from differing locations for these vehicles to meet. Based on his measurements, Dr. Schmidt indicated that for events to have happened as Mr. Peterson had testified, with the vehicles in the positions Mr. Peterson claimed they had been in, Mr. Harrison would have had to have been travelling about 300 miles per hour. On cross-examination, Dr. Schmidt conceded that people involved in serious accidents are often incorrect in their estimates of the circumstances of their accidents. Dr. Schmidt also testified that in his experience, a two-second emergency application of a truck's brakes (as Mr. Harrison had testified was his action before the collision) would cause skid marks.

On cross-examination, Mr. Peterson's attorney also asked Dr. Schmidt to calculate...