Posey County v. Chamness

Decision Date24 August 1982
Docket NumberNo. 1-981A267,1-981A267
PartiesPOSEY COUNTY, Board of Posey County Commissioners and Marcellus Deig, as Posey County Highway Superintendent, Defendants-Appellants, v. Victor L. CHAMNESS, Vern L. Chamness, and Faye Chamness, Plaintiffs-Appellees.
CourtIndiana Appellate Court

James M. Buthod, Mark W. Rietman, Buthod, Longest, Buthod & Rietman, Evansville, William H. Bender, Poseyville, for defendants-appellants.

Glenn A. Grampp, James D. Lopp, Sr., James D. Lopp, Jr., Evansville, for plaintiffs-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Defendants-appellants Posey County, Board of Posey County Commissioners and Marcellus Deig, as Posey County Highway Superintendent (Posey) appeal a judgment entered in the Vanderburgh Circuit Court upon a jury trial in favor of plaintiffs-appellees Victor L. Chamness (Chamness), Vern L. Chamness, and Faye Chamness (parents) in a personal injury action for negligent maintenance of a public thoroughfare. The jury returned a verdict awarding $225,000 to Chamness and $5,000 to his parents.

We affirm.

STATEMENT OF THE FACTS

On Saturday, May 26, 1979, at approximately 10:00 p.m., Chamness, a boy of 14 years of age, travelled from Cynthiana, in Posey County, to Evansville with five other friends to see a movie. All six persons travelled together to Evansville in a 1965 Plymouth Valiant automobile, and, after they watched the movie and made several stops on their way back home, at approximately 3:00 a. m. on May 27, 1979, the automobile, driven by one Michael Money, was involved in a one-car accident on Winery Road near S.R. 66 in Posey County.

At no time on the evening of the accident did Chamness drive the automobile. Prior to the accident, neither Money nor Chamness had ever been on Winery Road. The evidence discloses that on Winery Road there were no posted speed limit signs, signs indicating the existence of a curve, reduce speed signs, or warning lights. Money testified that he was driving 40-45 m. p. h. just before the accident.

Winery Road recently had been partially resurfaced on the stretch of road before the subject curve and the repaved section was in excellent condition. However, the resurfacing ended just before the road curved 90 degrees and the old pavement was broken, filled with gravel and had potholes. Posey County Sheriff Deputy Jerry Winkleman testified that the speed limit was not posted, and therefore, 55 m. p. h. was the permissible speed. Investigating officer Jerry Winkleman also testified that a road defect existed at the time of the accident, that being the absence of a curve sign to warn approaching motorists of the existence of the subject curve.

Failing to negotiate the curve, the automobile went off the road, glanced a tree and struck the embankment beside the road. As a result of the accident, all six occupants of the automobile were injured, two fatally. Chamness suffered a severe blow to the head and was rendered totally blind in his left eye. He suffered emotional problems as a result of permanently losing vision in his eye and from seeing his close friends killed in the same crash. Chamness' relationship with his parents deteriorated

due to his physical injuries and emotional problems caused by the accident

On September 12, 1979, Chamness and his parents filed a lawsuit against Posey alleging that Posey negligently maintained, repaired and failed to keep in a safe and usable condition Winery Road. A trial by jury commenced on May 25, 1981, and on May 27, 1981, the jury returned a verdict, awarding Chamness $225,000 and his parents $5,000. The trial court entered judgment upon the verdicts in favor of Chamness and his parents.

ISSUES

Posey presents five issues for review and we adopt Chamness' restatement of the issues as follows:

I. Whether the trial court erred in excluding the testimony of Jerry Winkleman, upon cross examination, as to the speed of the automobile in which the appellee was a passenger at the moment of impact;

II. Whether the trial court erred in excluding the testimony of Michael Money as to whether driving 55 m. p. h. would be too fast to be careful under the circumstances to negotiate the curve where the collision occurred;

III. Whether the trial court erred in excluding the testimony concerning prior convictions of the witness, Michael Money;

IV. Whether the trial court abused its discretion by questioning the defense counsel's trial tactics in the presence of the jury and intervening in the advocacy process on several occasions, thus prejudicing the jury against the appellants; and

V. Whether the verdicts returned by the jury were excessive, contrary to the evidence and the result of passion, prejudice and partiality.

DISCUSSION AND DECISION

Issues I and II. Improper exclusion of testimony

Posey argues that the trial court abused its discretion in sustaining Chamness' objection to Deputy Winkleman's testifying on cross examination as to the rate of speed the automobile was travelling at the moment of impact. Winkleman was called to testify as Chamness' witness to substantiate the allegations of negligence charged against Posey. It is the contention of Posey that it had a right to cross examine Winkleman on all phases of the accident since Chamness, on direct examination, opened up the general subject of speed and the occurrence of the accident in question. In support of its contention, Posey cites The Louisville, New Albany and Chicago Railway Company v. Wood, (1887) 113 Ind. 544, 14 N.E. 572; and Northern Indiana Public Service Co. v. Otis, (1969) 145 Ind.App. 159, 250 N.E.2d 378, for the propositions that where direct examination of a witness opens on a general subject, cross examination may go into any and all phases of that subject, and the scope of cross examination of an expert generally is broader than that permitted of other witnesses.

Our Supreme Court, in Reid v. State, (1978) 267 Ind. 555, 560-61, 372 N.E.2d 1149, discussed both the qualifications of a witness to testify as an expert and the standard of review of the trial court's ruling thereon as follows:

"There can be no hard and fast rule as to the quantum of knowledge required to qualify a witness as an expert in a given field. It has been said that he must be shown to be competent upon the subject concerning which he is to testify. Pittsburgh, etc. R. Co. v. Nicholas, (1906) 165 Ind. 679, 76 N.E. 522; City of Bloomington et al. v. Holt, Admr., (1977) Ind.App., 361 N.E.2d 1211, 1220. The determination of whether a witness is qualified to give an opinion is within the trial court's discretion. No precise knowledge is required, if the witness shows an acquaintance with the subject such as to qualify him to give an opinion. 'The witness must have sufficient skill, knowledge or experience in that area to make it likely that his informed inference will aid the jury properly to determine such matters.' Seidman, The Law of Evidence in Indiana, p. 21 and cases there cited. The extent of the witness' knowledge, however, affects the weight of his testimony, which is a matter for the jury to determine. City of Bloomington, etc., supra.

The qualification of an expert witness is generally left to the trial court's sound discretion, and the trial court's determination will not be set aside unless there is clear error, often termed an abuse of discretion. Niehaus, supra, Tyler v. State, (1968) 250 Ind. 419, 236 N.E.2d 815; Dougherty v. State, (1934) 206 Ind. 678, 191 N.E. 84. The requirement that a witness be qualified before being permitted to testify as such is predicated upon the witness' offer of an opinion that is based upon facts that the average juror is incapable of interpreting for himself. Stroud v. State, (1971) 257 Ind. 204, 273 N.E.2d 842, vacated on other grounds 413 U.S. 911, 93 S.Ct. 3038, 37 L.Ed.2d 1025; Keifer v. State, (1927) 199 Ind. 10, 154 N.E. 870.

The record discloses that Winkleman was called as a witness by Chamness to testify on facts concerning his report of the accident since he was the investigating officer. Chamness never qualified Winkleman as an expert witness and only questioned him about facts he observed at the accident scene or of which he had knowledge from past experience. On direct examination, Winkleman was asked from his experience whether it was possible for the automobile to negotiate the curve, where the accident occurred, at 55 m.p.h., the unposted but permissible speed limit. Winkleman testified that he was familiar with the road and its configuration, and therefore could give an opinion as to driving a certain speed on that road based on his own personal experience.

On cross examination, Posey began its questioning of Winkleman on factual matters concerning the accident, but then inquired of his opinion about the rate of speed the automobile actually was travelling at the moment of impact. Chamness objected to the question since no proper foundation had been laid to qualify Winkleman as an expert capable of formulating such an opinion. The trial court sustained the objection, which ruling Posey contends was an abuse of its discretion.

The burden of establishing the qualifications of a witness in order to permit him to testify as an expert is upon the party seeking to have such evidence admitted. McCraney v. Kuechenberg, (1969) 144 Ind.App. 629, 248 N.E.2d 171. It is not the burden of the adversary to prove that said witness is not qualified. McCraney, supra. Whether a witness is qualified to testify as an expert is for the determination of the trial court and its decision will stand barring a showing of manifest abuse of discretion. City of Indianapolis v. Robinson, (1981) Ind.App., 427 N.E.2d 902; McCraney, supra. However, the trial court has wide latitude in ruling on matters concerning the extent of cross examination of a witness, and such discretion will not be interfered with unless an abuse of discretion is shown. Johnson v. State, (1971) 257 Ind....

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