Spraker v. Lankin

• Decision Date: 24 January 1976
• Docket Number: No. 47805,47805
• Parties: George D. SPRAKER, Appellant, v. Arthur LANKIN and Thorobred Chevrolet, Inc., Appellees.
• Court: Kansas Supreme Court

Page 352

545 P.2d 352

218 Kan. 609

George D. SPRAKER, Appellant, v. Arthur LANKIN and Thorobred Chevrolet, Inc., Appellees.

No. 47805.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

In an action arising out of a motorcycle-truck collision, the record is examined and it is held that it was error (1) to receive expert testimony based upon speculative and assumed statistics, and (2) to permit comment in closing argument upon the failure of plaintiff to call an expert whom plaintiff had consulted but had not listed as a witness, and whose existence was not disclosed during the trial.

Gerald L. Michaud of Michaud, Cranmer, Syrios, Post & Levy, Wichita, argued the cause, and Robert Hall of Adams, Jones, Robinson & Malone, Chartered, Wichita, was on the brief for appellant.

William A. Hensley of Turner & Hensley, Chartered, Wichita, argued the cause, Raymond L. Dahlberg, Great Bend, and H. Lee Turner, Wichita, were on the brief for appellees.

MILLER, Justice:

This action arises out of a collision between a motorcycle and a pickup truck. A jury trial resulted in a verdict for the defendants. Plaintiff appeals, contending that the court erred in admitting the testimony of an accident reconstruction expert, Kenneth Razak, and in permitting defendants' counsel, over objection, to comment during closing argument upon plaintiff's failure to call as a witness an expert whom plaintiff had consulted.

Plaintiff was riding his Honda motorcycle in an easterly direction on East 21st Street in Wichita, Kansas, on August 19, 1970. Defendant Lankin, in the course and scope of his employment with defendant Thorobred Chevrolet, Inc., was driving a pickup truck owned by Thorobred in a westerly direction on East 21st Street. Lankin attempted a left turn into a driveway, and the vehicles collided.

Plaintiff testified that he stopped at a light on Oliver. He then continued on east and observed the westbound pickup truck. As he saw the pickup move over to the center line, plaintiff relaxed his throttle. The vehicles were then 100 to 125 feet apart. Plaintiff was traveling about 25 to 35 miles per hour, in a forty mile per hour zone. The truck gave no turn signal. When the pickup crossed the center line, plaintiff realized it was making a left turn. He started braking when they were 60 to 80 feet apart, applying the front wheel brakes about fifty per cent and full on the rear. His 'pure guesstimate' of the distance from the time brakes were applied to point of impact was 60 to 80 feet.

Plaintiff tried to steer around the pickup, but was unable to do so. His handlebars and windshield hit the last few inches of the pickup. He was thrown into the air, then slid down the pavement. Somebody told him later that he slid 'like 40 feet or something.' Plaintiff's Honda weighed about 620 pounds, including fuel and optional equipment.

Norman Hall, a traffic investigator for the Wichita Police Department with some 14 or 15 years' experience, was called to the scene. He was unable to locate a point of impact. He found no skid marks from either vehicle. He did observe a gouge mark in the pavement which he assumed was made by the motorcycle, but he is not certain it was. The motorcycle had been moved before he arrived, and was standing up, 68 feet from the gouge mark. Some gasoline was leaking from it; he saw no gasoline elsewhere.

Kenneth Razak, a consulting engineer and a qualified expert in the field, was retained by defendants to perform an accident reconstruction analysis of the collision. We summarize his testimony.

The ratio of weight to force or force to weight is called the coefficient of friction. The most accurate and dependable way to determine the coefficient of friction is to measure it in the situation or in as close to the situation as you can duplicate it.

To determine the coefficient of friction of a motorcycle sliding on its side, he suspended three motorcycles, weighing 120, 140 and 240 pounds, respectively from the back of a tow truck, with the wheels 3 to 4 inches off of the pavement surface. The truck was driving 60 miles per hour on a section of asphalt paving west of Wichita, a surface similar to that of the accident site, although it appears that this site was level while the accident occurred on a grade. Each suspended motorcycle was dropped. He ran three such tests. The slide distances on the lightest motorcycle varied from 113 to 139 feet; distances varied as much as forty per cent. This was the first data ever compiled on motorcycle sliding tests. He calculated the coefficient of friction from the speed, the weight, and the slid distance from the point of first marking of the motorcycle on the surface to the point where the cycle came to rest.

He also performed three braking tests to determine the coefficient of friction of a skidding motorcycle with the rear wheel locked and skidding. No brakes were applied to the front wheels; had front brakes been used, the stopping distance would have been reduced and the computed speed increased. A Harley Davidson motorcycle weighing 490 pounds and a driver weighing 190 pounds were utilized in the braking tests. He did not know the types of brakes with which the Harley or the Honda were equipped.

He used 60 to 80 feet as the braking distance, and 68 feet as the distance motorcycle slid following impact. Based upon the data thus compiled, Mr. Razak estimated plaintiff's speed to be from 50.7 to 58.6 miles per hour at the time he applied his brakes.

Mr. Lankin was present in court throughout the trial but did not testify. Apparently Mr. Razak was defendants' only witness on the question of liability. The jury returned a verdict for defendants and plaintiff brings the matter here.

Plaintiff's first three points on appeal relate to the Razak testimony. Plaintiff contends that it was error to receive his opinion in evidence because the test conditions were dissimilar; the test results were scientifically inadequate and inconclusive; and the opinion was based on facts not in evidence.

The results tending to establish contested facts have long been admissible in this jurisdiction. In an early action arising out of a collision between a horsedrawn carriage and a train, plaintiff offered evidence of tests made to determine whether the noise of trains coming through a cut would be deadened. We said:

'. . . The evidence sought was competent upon proof that the place was the same, and that the test was made under the same or similar circumstances. . . .

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'. . . The results of tests or experiments made under proper conditions are often admissible as tending to prove a fact in issue. (Citations omitted.) In offering such testimony care should be observed to show that the tests were made within the rule stated as to place and circumstances, and the court will not allow the evidence unless these requirements are observed.' Johnson v. Railroad Co., 80 Kan. 456, 464, 465, 103 P. 90, 93.

Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P.2d 33, was an action which arose from a collision between plaintiff's Dodge automobile and a passenger bus of the defendant. At page 48, 10 P.2d at page 37, the court says:

'Defendants also complain of the admission of testimony touching the sturdiness of Dodge sedan cars and that they will not collapse by being capsized. There is little merit to this point. Courts are inclined nto look with favor upon experimental evidence and tests of relevant occurrences. These need not be exactly similar to the occurrence which the jury has under consideration; the degree of similarity must be taken into account in weighing its probative force; but, if the similarity of conditions is slight, the evidence of the test (or) experiment has little evidentiary significance . . . the trial court may properly rule it out altogether. . . .'

Pool v. Day, 143 Kan. 226, 53 P.2d 912, was an action by a guest against the estate of the driver to recover for personal injuries sustained by the guest because of the alleged negligence of the driver. At page 231, 53 P.2d at page 915, this court states:

'Appellant urges strongly that there was error in the admission of experimental evidence without a preliminary showing of similarity or identity of condition. The evidence showing the distance at which an automobile could be stopped when traveling at certain rates of speed was based upon experiments made with a car of a different make than the one in which the accident occurred. It was made later than the other car and had the same kind of brakes but with greater square-inch braking surface. Appellant insists that such evidence is incompetent unless based on similar or identical instrumentalities. This could practically never be found. Even the same automobile, if repaired, would be different after being repaired than it was when new. Seldom could two cars be found that would be substantially alike in operation. This difference goes to the weight of the testimony rather than to its competency.

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'In 22 C.J. 759, under the heading of Similarity of Conditions it is said:

'It is not necessary, however, that the conditions should be exactly identical, but a reasonable or substantial similarity is sufficient, and the lack of exact identity affects only the weight and not the competency of the evidence, provided always that there is such a degree of similarity that evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented."

Experienced police officers and troopers of the Kansas Highway Patrol having the requisite experience and training have frequently been permitted to express opinions as to the speed of vehicles involved in highway collisions, based upon evidence observed at the scene, including direction of travel, skid marks, point of impact, damage to the vehicles, and the location in which the vehicles came to rest. Cherry v. State...