Rose v. Fague-Prouhet, FAGUE-PROUHE

• Decision Date: 22 October 1985
• Docket Number: D,No. 49614,FAGUE-PROUHE,49614
• Citation: 701 S.W.2d 509
• Parties: James and Lillian ROSE, Plaintiffs-Appellants, v. Lori Annefendant-Respondent.
• Court: Missouri Court of Appeals

Page 509

701 S.W.2d 509

James and Lillian ROSE, Plaintiffs-Appellants, v. Lori Ann FAGUE-PROUHET, Defendant-Respondent.

No. 49614.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 22, 1985.

Motion for Rehearing and/or Transfer

Denied Nov. 21, 1985.

Application to Transfer Denied

Jan. 15, 1986.

Neil John Bruntrager, St. Louis, for plaintiffs-appellants.

William F. James, St. Louis, for defendant-respondent.

KAROHL, Judge.

Plaintiffs, James and Lillian Rose, appeal judgment for defendant after a jury verdict in favor of defendant, Lori Ann Fague-Prouhet. Plaintiffs sued defendant for personal injuries sustained by James Rose as a result of an automobile collision with defendant. Plaintiff, Lillian Rose, sued for loss of consortium as a result of the collision. This case was tried as one involving comparative negligence of plaintiff James Rose and defendant.

Plaintiffs contend on appeal the trial court erred in: (1) excluding an expert's opinion of how the collision occurred since the evidence was relevant and did not invade the province of the jury; and (2) discharging the jury before it had completed its deliberations since the jury failed to determine the percentage of fault attributable to the parties as allowed in comparative fault cases.

On April 12, 1982, at 11:00 a.m. plaintiff-appellant, James Rose, was driving eastbound on St. Charles Rock Road in Bridgeton. As he was making a left-hand turn from St. Charles Rock Road into a parking lot on the north side of the road he was struck by defendant-respondent Lori Ann Fague-Prouhet, who was driving west on St. Charles Rock Road. Plaintiff James Rose suffered a concussion, ruptured muscles in his left leg, a fractured collarbone and shoulder blade, cuts and bruises. He was unable to work for approximately three months and incurred numerous medical bills. Defendant suffered no personal injury.

Plaintiffs' petition claims defendant failed to keep a careful lookout, drove at an excessive rate of speed and should have seen plaintiff James Rose in time to avoid the collision. To support his position plaintiff James Rose testified he was struck in the west-bound curb lane of the four lane street. Prior to impact he heard an engine "kick-in." The impact knocked plaintiff's automobile 10-15 feet sideways causing him to strike a sign located off the road.

Defendant denied plaintiffs' allegations. She claimed her car never left the westbound inside center lane and that she was traveling about 35 mph in a 40 mph speed zone. She testified the accident occurred in the center lane not the curb lane as plaintiffs contend. Also, she applied her brakes but was unable to avoid the collision.

An engineering expert testified on behalf of plaintiffs. There is no dispute the witness was a qualified expert in the field of automobile engineering. The expert viewed the location of the collision, reviewed the depositions of both plaintiffs and defendant, the police report, and photographs of plaintiffs' and defendant's vehicles after the collision. He stated in an in-camera hearing his opinion was based solely on the photographs, not on testimony of anybody, mathematical formulas or calculations and the collision occurred as described by plaintiff. He also stated there are many angles at which plaintiff could have approached the turn. Defendant objected only to the interpretation of the photographs by the expert as invading the province of the jury.

Plaintiffs' first point on appeal claims the trial court erred in excluding the conclusion testimony of the expert because the evidence was relevant and did not invade the province of the jury. Plaintiffs intended the expert to testify that the angle of impact, the turning radius and width of the traffic lanes was such that the accident could not have happened the way defendant described. The court allowed the expert to testify about stopping and braking distances, turning radius and a videotape the expert took at the location of the collision. The court excluded only the expert's interpretation of photographs of the automobile.

Admission or exclusion of expert testimony by the trial court will not be disturbed on appeal unless it plainly appears the trial court abused its discretion. Keller v. International Harvester Corp., 648 S.W.2d 584, 591-592 (Mo.App.1983). Opinion evidence may only be received when the witness by experience and knowledge is peculiarly qualified to draw conclusions from the facts and the jury, from want of such experience and knowledge, is not capable of drawing the correct conclusion. Garner v. Jones, 589 S.W.2d 66, 68 (Mo.App.1979).

The supreme court addressed this issue in Housman v. Fiddyment, 421 S.W.2d 284 (Mo. banc 1967). In that case the trial court permitted an expert witness to testify as to the location of the point of impact and the position of defendant's vehicle at the time of impact. The court stated the trial court abused its discretion in admitting the expert's testimony concerning the position of defendant's vehicle and the point of impact because "[t]hese subjects do not involve an application of the principals of physics, engineering, mechanics or other technical fields of science requiring specialized information. These questions could be determined by jurors possessed of the knowledge of ordinary men of the time. Automobile collision cases involving these subjects of inquiry are routinely decided by Missouri juries without aid of expert witnesses." Id. at 291-292. Butler v. Crowe, 540 S.W.2d 940, 942 (Mo.App.1976) also observes that "[t]he admission of an opinion on the relative location of vehicles at impact ... is generally erroneous."

Plaintiffs rely on Yocum v. Kansas City Public Service Co., 349 S.W.2d 860 (Mo.1961) to support their contention. But Yocum is distinguishable because in Yocum the expert's opinion involved technical information not possessed by the ordinary juror. In the case before us, the trial court properly allowed the expert to testify about stopping distances and turning radii, and properly excluded the expert's opinion of how the accident occurred since by his testimony his opinion was based solely upon photographs. This evidence was before the jury which possessed the knowledge necessary to accurately...