Standard Motor Co. v. Blood

• Decision Date: 11 June 1964
• Docket Number: No. 14301,14301
• Parties: STANDARD MOTOR COMPANY, Ltd., Appellant, v. Charles BLOOD, Appellee.
• Court: Texas Court of Appeals

Page 651

380 S.W.2d 651

STANDARD MOTOR COMPANY, Ltd., Appellant, v. Charles BLOOD, Appellee.

No. 14301.

Court of Civil Appeals of Texas, Houston.

June 11, 1964.

Rehearing Denied July 9, 1964.

Fulbright, Crooker, Freeman, Bates & Jaworski, S. G. Kolius, Thomas A. Brown, Jr., Houston, for appellant.

Robert V. Light, Little Rock, Ark., W. W. Watkins, Curtiss Brown, W. James Kronzer, Houston, Hill, Brown, Kronzer, Abaraham, Watkins & Steely, Houston, Smith, Williams, Friday & Bowen, Little Rock, Ark., of counsel, for appellee.

COLEMAN, Justice.

This is a suit seeking damages for personal injuries. Appellee was injured while riding as a passenger in a new automobile purchased by the driver from a dealer in the State of Arkansas. Appellant, the manufacturer of Triumph automobiles, is domiciled in England. Appellee's contention that a defect in the car's braking system was a proximate cause of the accident was supported by the verdict of the jury and a judgment was rendered in his favor in the sum of $275,000.00.

Appellant tendered into evidence the opinion evidence of four Arkansas peace officers that just prior to the accident the vehicle in which appellee was riding was being operated at a speed of 85 miles per hour. On objection the trial court excluded this testimony. Three of these officers arrived at the scene within a few minutes after the accident. The accident happened while the car was being driven around a 90~ curve on an unbanked two-lane concrete highway. Prior to the accident there had been a heavy rain, and while the concrete was dry, the shoulders of the highway were muddy. Patrolman Beach testified that he found marks made by the car and followed them to the car. Briefly summarized, it is his testimony that just as the car went into the curve its right-hand wheels went off on the shoulder and left a rut for 39 feet with some indication of braking action by the left wheels remaining on the pavement. The car then got back on the pavement and heavy skid marks from all wheels twelve feet in length could be followed to a point where the car again went off the road and then skidded sideways in the mud for 84 feet where it apparently rolled over sideways and landed on its top. He testified that except for the damage to the top there was little apparent damage to the car.

Officer Beach testified that he had ten years experience as a police officer and five years as a State trooper and had received training and experience in investigating accidents. He testified that based on the facts he observed, the condition of the road and shoulder, the measurements, the damage to the car, and his training and experience, he had formed an opinion of the speed of the car. He also testified that he knew nothing about coefficients of friction, and couldn't work out the exact speed like Captain De Long could, but that his estimate was his personal opinion based on experience.

The testimony of the two local officers who assisted in the investigation was not significantly different from that given by Trooper Beach. Captain De Long visited the scene two days later with Trooper Beach and saw the marks left by the car. His testimony is properly preserved by bill of exception and reflects that he secured the officer's measurements and inspected the car. He testified that he had an opinion as to the speed of the car, but that it was not one he would take into court because there were so many varying factors. He stated that in estimating speed from skid marks all made on one surface he would expect an accuracy of between two to eight miles an hour, but that in this instance an estimate was complicated by the fact that the car was on and off of two different surfaces, three times. He further stated that the tolerance of his calculations was not sufficient for him to swear that his estimate was accurate. He stated, however, that it was his opinion that the car was traveling at a minimum speed of 85 miles an hour at the time it entered the curve.

Captain De Long testified that he had attended numerous traffic schools and had grauduated from the Northwestern University Traffic Institute. Other evidence indicated that from training and experence this witness was qualified by specialized scientific knowledge and skill to estimate the speed of vehicles if he were in possession of sufficient data and information.

As a general rule the question of whether a witness qualifies as an expert in a particular field is a matter for determination of the trial court in the exercise of judicial discretion and is reviewable only for abuse. Lone Star Gas Company v. Thomas, Tex.Civ.App., 345 S.W.2d 844; Bell v. Bradshaw, Tex.Civ.App., 342 S.W.2d 185.

None of these witnesses, with the possible exception of De Long undertook to show any technical or scientific basis for the estimates of speed they offered. There is no suggestion that the damage suffered by the car, or the skid marks found at the scene, offered any reliable scientific basis for an estimate of speed. Under such circumstances the trial court did not err in rejecting the proferred testimony. Union Bus Lines v. Moulder, Tex.Civ.App., 180 S.W.2d 509; Flores v. Barlow, Tex.Civ.App., 354 S.W.2d 173, error ref., n. r. e.

By its Second Point appellant alleges that the court erred in permitting the jury to view motion pictures of certain tests because the tests were made under circumstances at such variance from those existing at the time of the accident made the basis of this suit as to constitute them irrelevant and of no probative force.

It would unduly lengthen this opinion to attempt a detailed explanation of the front braking system of the vehicle in question. The pictures exhibited an automobile similar to that involved in the accident being operated by the expert witness offered by appellee, and swerving violently to the right upon application of the brakes, the driver not having his hands on the steering wheel.

Generally appellee's theory of the cause of the accident is that the bridge pipe connecting the inboard brake cylinder to the outboard cylinder on the left front wheel became clogged with pieces of the inner lining of the flexible brake fluid hose from the master cylinder, thereby stopping the flow of brake fluid or pressure from the inner to the outer cylinder on the left front wheel. Appellee contends that this caused the outboard braking pad to exert less pressure on the disc than the inboard pad, thereby causing a loss of braking power on the left front wheel. This loss of braking power then caused the car to pull suddently to the right as it was braked when going into a sharp curve, causing the car to leave the road and overturn.

It is undisputed that after the accident the outer cylinder on the left front wheel of the damaged car was full of hydraulic fluid, as was the entire hydraulic system. The brake pads were almost new and were positioned in close proximity to the disc.

The test presented by motion picture was made with the outboard cylinder on the left front wheel of the test vehicle open to the air. The thickness of the brake pad was not measured, but there was testimony that on visual inspection it was determined that the pad was sufficiently thick for proper braking action, and that both before and after the test in question the brakes operated efficiently.

It is appellant's theory, supported by considerable testimony, that if the brake pads are new and positioned close to the disc, and the outboard cylinder is full of fluid, even if the bridge pipe between the outboard and inboard cylinder is completely blocked, the outboard pad will be held stationary by the hydraulic fluid in the outboard cylinder and the inboard pad pressing against the disc will cause it to come in contact with the stationary pad. Then as a result of the operation of natural laws of physics the pads will press on the disc with equal force and effect.

Mr. Parkinson, appellant's design engineer, testified by deposition (introduced into evidence by appellee) to certain tests he had made, including a test with the outboard cylinder completely exhausted of fluid and with the outboard pad moved to its full extent away from the disc. He testified that under such conditions there would still be some braking action on the outboard side, but less than where the cylinder was full of fluid and the pad near the cylinder. In...