Snyder v. New York Cent. Transport Co., 308

• Decision Date: 26 July 1966
• Docket Number: No. 3,No. 308,308,3
• Citation: 4 Mich.App. 38,143 N.W.2d 791
• Parties: Donald Kenneth SNYDER, Plaintiff and Appellant, v. NEW YORK CENTRAL TRANSPORT COMPANY, a foreign corporation, and Stanley Elden Wentworth and Walter Pronyk, Defendants and Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 791

143 N.W.2d 791

4 Mich.App. 38

Donald Kenneth SNYDER, Plaintiff and Appellant, v. NEW YORK CENTRAL TRANSPORT COMPANY, a foreign corporation and Stanley Elden Wentworth and Walter Pronyk Defendants and Appellees.

Cal. No. 308.

Court of Appeals of Michigan, Division No. 3.

July 26, 1966.

Robert R. Day, Walter Martin, Martin & Martin, Saginaw, for appellant.

John W. McGraw, Stanton, Taylor, McGraw & Collison, Saginaw, for appellees.

Before McGREGOR, P.J., and HOLBROOK and QUINN, JJ.

HOLBROOK, Judge.

This is an automobile negligence case, tried in the Circuit Court for Saginaw County before a jury in October and November, 1963, resulting in a verdict for defendants of no cause for action. At the close of the proofs the trial judge directed a verdict in favor of defendant Walter Pronyk, of no cause for action.

Plaintiff's motion for a new trial was denied August 21, 1964. Plaintiff has appealed and raises three questions:

'1. Did the trial court err in allowing defendants to call a collision reconstruction expert as an expert witness and use test photographs as exhibits upon trial after the defendants upon pre-trial indicated they did not intended to use any expert witness or additional exhibits?

'2. Had an adequate foundation been laid to permit an expert opinion on the speed of the plaintiff's car?

'3. Did the trial court err in it's instructions to the jury?'

The pertinent facts appear to be as follows:

The accident involved an automobile operated by the plaintiff, and a tractor-trailer outfit, 47 feet in length, owned by defendant company, and operated by defendant Stanley Elden Wentworth, and occurred on November 28, 1959, a clear night, at about 4:28 a.m., with the pavement comparatively dry. The vehicles were proceeding in opposite directions on West Genesee street also formerly known as US 10, in the city of Saginaw, Michigan. Genesee street had seven lanes for traffic: three lanes on the north side of the yellow line, for westerly bound traffic, and four lanes on the south side for easterly bound traffic. The tractor-trailer was proceeding in a westerly direction on Genesee street when its driver stopped, and looked for approaching traffic and then made a left hand turn into the driveway of the Monarch gasoline station on the south side of the street. While in the process of negotiating this turn, when defendant's tractor had crossed all of the east bound lanes, i.e., those lanes south of the yellow line, and all of his trailer had likewise crossed these lanes with the exception of the last 14 feet thereof, plaintiff driving a 1958 Chevrolet and proceeding in an easterly direction, collided with the back part of the trailer, just ahead of the rear axle of defendant's vehicle.

Persons using the highway had a clear view at the scene in both directions for several blocks, because of the public and business lights present in that immediate area.

The plaintiff and his two passengers riding with him in the front seat, received serious head injuries when the iron beam forming the outer bottom edge of the trailer was struck by the windshield of plaintiff's automobile. The defendant driver did not realize a collision had occurred until he found it impossible to complete his turn into the gasoline station because of something jammed under the rear part of his trailer.

Plaintiff-appellant testified that the lights from the tractor-trailer suddenly flashed across his path of travel when he was about three car lengths, or 50 feet away; that he slammed on his brakes and the collision occurred. He also testified that he was traveling at 25 miles per hour, which was the legal rate of speed for that location. He further testified that earlier in the evening he had been at the home of a friend, with other college students and each had drunk about two mixed whiskey drinks.

Plaintiff's vehicle left 44 feet of skid marks up to the point of impact. Plaintiff's exhibits 3 through 10 were photographs taken from varying positions of the scene shortly after the accident, showing the trailer and the automobile, before being moved. The plaintiff's automobile was extensively damaged as shown in the exhibits.

The plaintiff claims in relation to his first question raised on this appeal, that the trial judge erred in allowing defendant to call an expert witness to testify as to the speed of plaintiff's automobile from the physical facts shown by the testimony produced at the trial. The plaintiff asserts as fact the admission of test photographs of defendants as exhibits. The only photographs introduced in evidence were plaintiff's numbered 3 through 10. No photographs of defendants were admitted.

Plaintiff asserts that defendants should have informed the court of their intention to call the expert witness at pretrial and to have given plaintiff such expert's name in the list of witnesses to be exchanged as agreed between the parties at the pretrial hearing. It is true defendants did not indicate an intention to use such expert witness in the pretrial hearing but did, however, give a list of the known witnesses they intended to call in accord with the pretrial order. Subsequently they contacted Dr. Thomas Manos, an expert at the University of Detroit, and then decided to have him testify. They notified plaintiff's counsel of their intention of calling Dr. Manos as a witness some three months and 12 days prior to the trial date. It is also true that defendants, in such notification, did not inform plaintiff on what subject the expert would testify, but neither did plaintiff inquire, submit interrogatories, or request permission from the court to take a deposition of Dr. Manos.

The trial judge permitted defendants to call Dr. Manos as a witness. The learned trial judge, in passing on this phase of the motion for new trial, stated:

'Plaintiff was apprised of defendant's intention to use the expert witness complained about long before the time of trial, although after the time set in the pretrial order. However, it seems that the court did not abuse its discretion in permitting the witness to testify, especially in view of the state of our law relative to the so-called 'work product of the lawyer.' See note at bottom of page 413, in Wilson v. Saginaw Circuit Judge (1963), 370 Mich. 404 (122 N.W.2d 57).'

The pretrial order, in any event, could only apply to witnesses known at the time of furnishing their names as agreed. Defendants informed plaintiff of the expert's name as soon as it was determined he would be a witness and in sufficient time so that plaintiff could have prepared to meet his testimony, no matter what it might have been.

GCR 1963, 301, the pretrial conference rule, provides for consideration of limiting the number of expert witnesses and whether the parties wish to agree to the appointment of an impartial expert. The pretrial statement did not contain any reference to limiting the number of expert witnesses. The plaintiff, although required by the pretrial statement to file a list of the names of witnesses he intended to use at the trial within three weeks of July 23, 1962 did not furnish such list until after an order requiring same March 26, 1963. Defendants gave notice to plaintiff of the additional witness July 9, 1963. Under the circumstances, the trial judge did not abuse his discretion in allowing defendants to call this expert witness.

Appellant's second question raises the issue of whether an adequate foundation had been laid to allow Dr. Manos to give an opinion on the speed of plaintiff's car.

The testimony disclosed that Dr. Thomas Manos was a professor of mechanical engineering in the undergraduate and graduate school of the University of Detroit for the immediate proceding four years. His educational accomplishments included a bechelor of science degree in aeronautical engineering and mathematics, a master of science and engineering mechanics, and a doctorate in mechanical engineering from the University of Michigan, and a master of science and mechanical engineering degree from Wayne State University. He was a registered engineer in the State of Michigan. Previous to his professorship at the University of Detroit, he taught at Wayne State University for five years and for seven years taught automotive engineering at the Henry Ford Community College. He was also a director of the Transport Research Institute, which studied the various safety factors of automobiles, conducted experiments of taking vehicles out and colliding them with each other under various conditions, then comparing results with anticipated results from studies made prior to the experiments. He had extensively experimented with many vehicles as to skidding properties, speed, and damage resulting to vehicles by reason of collision under varying conditions. For four years he worked as principal engineer with the Ford Motor Car Company and directed analytical research at that time in the crash safety program. His background indicated considerable actual experience concerning the expert areas upon which he testified in this case. Such experience, together with his educational training, without question, qualified Dr. Manos as an expert in his field.

In giving his opinion on the speed of plaintiff's vehicle, he was informed of the following factors testified to by witnesses at the scene: 44 feet of skid marks made by plaintiff's vehicle, the make and weight of plaintiff's automobile, the composition of the pavement (bituminous), that it was a cold clear night and the pavement described as dry, or slightly moist with dew; photographs of the scene and the damage to plaintiff's automobile caused by the collision plainly showing. From these factors and applying his specialized scientific knowledge and experience, he gave his opinion that plaintiff was traveling a minimum of 40 miles per hour just before the accident. To the question of speed assuming no impact or that plaintiff stopped within the 44 feet of...