Reeves v. Markle

• Decision Date: 10 May 1978
• Docket Number: No. 13488-PR,13488-PR
• Citation: 579 P.2d 1382,119 Ariz. 159
• Parties: Richard Gene REEVES, Alton Reeves and Helen Doe Reeves, husband and wife, doing business as Reeves Livestock Transport, Appellants, v. Irene MARKLE, surviving spouse of Robert C. Markle, for and on behalf of Irene Markle and the surviving children of Robert C. Markle, Appellee.
• Court: Arizona Supreme Court

Page 1382

579 P.2d 1382

119 Ariz. 159

Richard Gene REEVES, Alton Reeves and Helen Doe Reeves, husband and wife, doing business as Reeves Livestock Transport, Appellants, v. Irene MARKLE, surviving spouse of Robert C. Markle, for and on behalf of Irene Markle and the surviving children of Robert C. Markle, Appellee.

No. 13488-PR.

Supreme Court of Arizona,In Banc.

May 10, 1978.

Rehearing Denied June 6, 1978.

Price, Tinney, Lindberg & Gianas by John E. Lindberg, Tucson, for appellants.

Quigley & Quigley, P.C. by John M. Quigley, Tucson, for appellee. GORDON, Justice:

Following the trial of a wrongful death action, appellee moved for a new trial. The motion was granted, but the Court of Appeals reversed the new trial order and denied appellee's motion for rehearing. We accepted review of this case following the filing of a petition for review pursuant to Rule 47(b), 17A A.R.S. Supreme Court Rules.

The sole question presented is whether the trial court erred in granting a new trial. The grounds relied on by the trial court for setting aside the jury's verdict included, inter alia :

(1) Its failure to instruct on the doctrine of last clear chance;

(2) Its refusal to allow the plaintiff's accident reconstruction expert to testify as to the speed of the vehicles at impact and upon separation; and

(3) "Upon the further ground that the verdict of the jury is not justified by the evidence and contrary to the great weight of evidence, and in connection therewith, the Court declares that it has reviewed the sufficiency of the evidence to support the judgment, and that the Court was shocked by the verdict of the jury."

This wrongful death action arose from a two vehicle accident on Highway I-10, a divided, four lane highway in Arizona. At approximately 5:20 p. m. on May 8, 1975, Ricky Reeves was operating a Peterbilt truck and trailer owned by the Reeves Livestock Transport Company. Reeves had been driving for approximately thirty hours without rest except for a thirty minute period of unloading cattle from the trailer, and a two hour repair break during which he consumed a "couple of beers" and ate dinner. While descending a long straight section of the highway, at approximately 60 miles per hour, Reeves noticed Markle's vehicle, a Ford Pinto, preceding him in the right hand lane. At this time, Reeves was about a quarter of a mile behind the car, which was weaving as it moved along the road at approximately forty miles per hour. Reeves activated the left turn indicator on his truck and began to change lanes in order to pass Markle, but Markle's car pulled into the left lane blocking Reeves' path. Without slackening his speed, or sounding a warning, Reeves attempted to pass using the right hand lane. Markle again pulled in front of him, and the right front fender of the truck collided with the rear of the car almost immediately. Reeves claimed he attempted to avoid the accident by swerving into the left lane, but that the vehicles impacted during the maneuver. The accident reconstruction expert, on the other hand, testified that neither vehicle braked nor made any sharp turns prior to impact. Rather, he believed the physical evidence indicated that Reeves was making a gradual passing maneuver to the left when the impact occurred. Regardless, Markle's car spun and tumbled off the highway, ejecting the driver who subsequently died.

The new trial order included both general and specific grounds. For purposes of review, we will assume the trial judge relied solely on the specific grounds. Estabrook v. J. C. Penney Company, 105 Ariz. 302, 464 P.2d 325 (1970). One of the specific grounds cited by the trial court was its failure to instruct the jury on the theory of last clear chance.

Last Clear Chance

Odekirk v. Austin, 90 Ariz. 97, 366 P.2d 80 (1961), Arizona's leading case on the doctrine of last clear chance, set forth the elements of the theory as applied to this case:

"(a) The plaintiff has negligently subjected himself to a danger which he could have avoided by the exercise of reasonable vigilance; (b) the defendant actually saw or knew of the plaintiff's situation and realized or ought to have realized that the plaintiff was inattentive, and (c) the defendant thereafter has a last clear chance to avoid injuring the plaintiff by the exercise of reasonable care and fails to do so." 90 Ariz. at 102, 366 P.2d at 83.

The facts of this case satisfy the first of the above elements. If Markle had been vigilant, he would have been aware of the approaching traffic which posed a danger to him if he failed to obey the rules of the road and continued his weaving. However, following a thorough review of the record we do not believe the second and third elements were satisfied by the evidence. The sequence of events was inadequate to have alerted Reeves that Markle was inattentive until the final lane change. At that point, Reeves tried to turn and slow his vehicle, but it was too late to avoid the accident. Accordingly, there was no last clear chance. Schneider v. Macari, 111 Ariz. 483, 533 P.2d 540 (1975).

Expert Testimony

Another specific ground relied on by the trial court in its new trial order was the court's refusal to allow a qualified expert to state his conclusions as to the speeds of the vehicles. Outside the presence of the jury, appellee's accident reconstruction expert offered testimony as to the speed of the vehicles at impact and upon their separation. Appellant objected to this evidence, and the court withheld it from the jury. The expert, Mr. Larmour, testified he had all the facts necessary to establish, with a reasonable degree of certainty, the range of speeds of the vehicles at impact and at separation. Yet the court rejected the offered evidence because no person had witnessed exactly what happened to the Pinto after impact, and therefore the court concluded that the expert's testimony would amount to "pure speculation". This objection to Mr. Larmour's calculations only goes to the weight of the evidence not its admissibility, because adequate facts were in evidence for him to formulate a reasonably certain opinion. Bullard v. Stonebreaker, 101 Ariz. 584, 422 P.2d 700 (1967); Ball Corporation v. George, 27 Ariz.App. 540, 556 P.2d 1143 (1976).

Appellant also contends the opinion of Mr. Larmour was objectionable because his conclusions were based in part on hearsay controlled collision studies by U.C.L.A., Texas A. & M., Cornell, and by the Institute of Transportation and Traffic Engineering. Larmour utilized these studies to provide the coefficient of friction applicable to a rolling vehicle. In objecting to the testimony, appellant relies on the general rule set forth in Gillespie Land and Irrigation Company v. Gonzalez, 93 Ariz. 152, 379 P.2d 135 (1963); and Schmidt v. Gibbons, 3 Ariz.App. 147, 412 P.2d 716 (1966). At the time of those cases, the general rule apparently was that an expert could not base his opinion upon the inferences or conclusions of others. Yet, both Gillespie and Schmidt permitted the expert to form opinions based on other's opinions, previously admitted in evidence. Those courts concluded that a party could cross examine the witness offering the initial conclusion in order to probe and uncover its inherent weaknesses, thus no logical reason remained to exclude an opinion based in part on another's opinion which had been scrutinized before the jury. These cases, however did not squarely meet the issue here presented.

The reason underlying excluding an expert's opinion based on another's opinion not in evidence is simply that one's opponent is deprived of the opportunity to cross examine the proponent of the original opinion. "The essential objection seems to be that the jury is asked to accept as evidence the witness' inference, based upon someone's hearsay assertion of a fact which is, presumably, not supported by any evidence at the trial and which therefore the jury has no basis for finding to be true". McCormick on Evidence, §§ 15, 34 (2d Ed. 1972). "Of course, almost all expert opinion embodies hearsay indirectly, a matter which courts often recognize and accept". Id. at 36.

The latter statement reflects the issue sub judice. Clearly an expert's opinion which is based on the out of court statement of a witness to an accident presents the obvious hearsay problems, such as the inability of a jury to weigh the accuracy of the original opinion. Gillespie Land and Irrigation Company v. Gonzalez, 93 Ariz. 152, 379 P.2d 135 (1963). However, Mr. Larmour did not rely on a hearsay statement of facts concerning the accident, rather, he personally investigated the accident scene for his fact basis. To these facts he applied standard engineering formulas and information from the controlled crash studies. He offered to demonstrate all his calculations for the court. Thus, he could have been cross examined as to his calculations and conclusions. Mr. Larmour's opinion concerning the speeds of the vehicles was not simply a statement or conclusion contained in the studies. Rather, he utilized reliable information from those studies to evaluate the physical evidence from the scene of the accident, just as any accident reconstruction expert must utilize the coefficients of friction for different types of road surfaces. If expert witnesses could not rely on information gained through their study of scientific literature because of its hearsay nature, then it would be virtually impossible for any expert to evaluate the facts presented in any lawsuit, because nearly everything a person has learned technically constitutes hearsay.

That an expert may rely on scientific studies and treatises in forming an opinion is supported by Professor Wigmore's conclusion that such materials are sufficiently trustworthy to form an exception to the hearsay rule.

"There is no need of assuming a higher degree of sincerity for learned writers as a class than for other persons; but we may at least say...