Runnion v. Kitts, 4333

• Decision Date: 28 February 1975
• Docket Number: No. 4333,4333
• Parties: Richard Franklin RUNNION, Appellant (Plaintiff below), v. Jesse Lee KITTS and the Wyoming State Highway Department, State of Wyoming, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 1307

531 P.2d 1307

Richard Franklin RUNNION, Appellant (Plaintiff below), v. Jesse Lee KITTS and the Wyoming State Highway Department, State of Wyoming, Appellees (Defendants below).

No. 4333.

Supreme Court of Wyoming.

Feb. 28, 1975.

Harry E. Leimback, Casper, for appellant.

William S. Bon, Casper, for appellees.

Before McCLINTOCK, RAPER and THOMAS, JJ.

RAPER, Justice.

It was a late February afternoon when plaintiff-appellant in this case was driving with two passengers on Highway 487 between Casper and Medicine Bow, proceeding south toward the Kerr-MeGee mine site where they were employed. Defendant-appellee Kitts, an employee of the defendant-appellee, Wyoming State Highway Department, was driving a snowplow, mounted on a dump truck, he being assigned to plow and sand Highway 487 in the area of Shirley Rim. He was working in a southerly direction but about to turn around and was headed into an area on the west side of the road where he could reverse the direction of his vehicle.

There was an intermittent foggy condition; plaintiff came out of a fog bank, saw the truck, slammed on his brakes and according to measurements left heavy skid marks for a distance of 183 feet before ramming into the right rear side of the truck, near the right rear wheels on the right side of the highway. He and his passengers were all injured and sued the defendants-appellees. At the trial of the case, the jury returned a verdict for this plaintiff's two passengers but denied him any recovery, obviously on the basis of his contributory negligence, so he appeals.

Other facts may be developed as appropriate during the court's disposition of the case. Plaintiff complains that the trial court was in error in allowing an unqualified highway patrolman to testify for the defendants as to the speed of plaintiff's vehicle, made mistakes in giving two instructions and should have submitted separate verdicts against each defendant for the consideration of the jury, rather than a joint one.

Plaintiff not only does not believe the highway patrolman qualified as an expert but also complains that the patrolman's skid tests were conducted under conditions differing from those existing at the time of the accident, were improperly done as well and the patrolman as an expert-if he was one-failed to take all material factors into consideration. Plaintiff claims it was reversible error to admit any of the patrolman's testimony. Plaintiff, after repeated objections during the course of the testimony, moved to have the testimony of the witness stricken for all the reasons stated, which motion the court took under advisement but never made a ruling; the motion was never renewed. For all practical purposes it can be considered overruled because the testimony was not stricken.

In the qualification of the highway patrolman, it developed that he had 13 years' service with the State of Wyoming in that capacity, during which time he had investigated many accidents and attended training courses in automobile accident investigation. He was the one who responded to and investigated the collision at issue and made all the measurements, including the determination that there were tire skid marks for a distance of 183 feet left by plaintiff's car, there being no break in them from beginning to end. The witness knew how to work a speed calculator from test skids and had training in ascertaining the minimum speed computed in that fashion from the length of the questioned skid marks.

The admissibility of testimony of an expert rests largely upon the trial judge's discretion and that discretion is reviewable only for abuse. McCormick, et al. on Evidence, 2d Ed., H.B., § 13, p. 30, makes the observation that reversals for abuse are rare.

The rule in Wyoming has been established in several cases. Whether or not the qualification of a witness with respect to knowledge or special experience is sufficiently established is a matter resting largely in the discretion of the trial court, whose determination is usually final and will not be disturbed except in extreme cases. Krahn v. Pierce, Wyo.1971, 485 P.2d 1021, 1025; Taylor v. MacDonald, Wyo.1966, 409 P.2d 762, 764; Johnson v. Hanover Fire Ins. Co., 1943, 59 Wyo. 120, 133, 137 P.2d 615, 618.

The rule applied to speed determination cases has been treated extensively in Anno., 29 A.L.R.2d 248, 252, where an overall coverage is outlined for the United States in general. It is there simply stated:

'Since the law gives the trial court considerable discretion in determining whether a witness qualifies as an expert, it is difficult to state precisely when a witness such as a police officer, highway patrolman, or other law enforcement officer will be considered qualified to give expert opinion testimony based on skid marks and other physical facts, on the question of the speed of a motor vehicle. Although there are a few decisions to the contrary, most appellate courts have held that the trial court does not abuse its discretion in permitting a law enforcement officer to give such opinion testimony where the witness testifies that he has had special training and substantial experience in the investigation of motor vehicle accidents, including their causes and the determination of speed based on physicial evidence.'

It is realized that some expert testimony in various cases is stronger than in others and that its effect is damaged to an extent by effective cross-examination, such as in this particular case. It is, however the function of the jury to sort out the weaknesses and the strengths of the testimony. If a trial judge takes on too actively the role of disagreeing with the opinions of an expert and manner of arriving at them, he runs the danger of placing himself in the position of being the expert and usurping the office of the jury.

Plaintiff's allegation of error really goes to the weight to be given the testimony of the highway patrolman. Admissibility and credibility are two separate subjects. The weight is left to the jury. Graham v. Rolandson, 1967, 150 Mont. 270, 285, 435 P.2d 263, 271; Thomas v. Harper, 1964, 53 Tenn.App. 549, 385 S.W.2d 130, 136; Central Container Corp. v. Westbrook, 1962, 105 Ga.App. 855, 126 S.E.2d 264, 268, A jury has considerable latitude in its acceptance or rejection of expert testimony.

The following instruction would be appropriate, once admissibility is established and illustrates the part of the jury in such situations, excellently states the rule and is given as an example, though there are others of a similar nature in general use. 'The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call 'expert witnesses'. Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state an opinion as to the relevant and material matter, in which they profess to be expert, and may also state their reasons for the opinion.

'You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, you may disregard the opinion entirely.' 1 Devitt and Blackmar, Fed. Jury Instr., 2d Ed., § 11.27, p. 241-242.

Though it would have been preferable, such an instruction was not given in this case, nor was a similar one offered, but the preliminary instruction generally in use, outlining the duties of the court and jury, pertaining to all witnesses, did minimally suffice and was given in the following language:

'The jury is the sole judge of the credibility of the witnesses, and of the weight to be given their testimony. In so doing, you may take into consideration all facts and circumstances in the case, and give to each such weight as in the light of your experience and knowledge of human affairs, you think it is entitled to.

'In judging the credibility of the witnesses in this case, you should take into consideration * * * their apparent intelligence or lack of intelligence, their means of knowledge of the facts...