State v. Willian, 1-280A42

• Decision Date: 22 July 1981
• Docket Number: No. 1-280A42,1-280A42
• Parties: STATE of Indiana, Defendant-Appellant, v. Ervin H. WILLIAN and Christel Willian, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 668

423 N.E.2d 668

STATE of Indiana, Defendant-Appellant, v. Ervin H. WILLIAN and Christel Willian, Plaintiffs-Appellees.

No. 1-280A42.

Court of Appeals of Indiana, First District.

July 22, 1981.

Rehearing Denied Aug. 31, 1981.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for defendant-appellant.

Donald R. Forrest, George W. Gesenhues, Jr., New Albany, for plaintiffs-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

The State of Indiana appeals from judgments for damages of $110,000 in favor of Ervin H. Willian for personal injuries, and for $10,000 damages for Christel Willian for loss of consortium. The action by Willians was based upon alleged negligent design, construction, maintenance, and repair of U. S. Highway 150. We affirm.

STATEMENT OF THE FACTS

On March 16, 1973, Michael Ingram ¹ was driving his pickup truck in an easterly direction on U. S. Highway 150, a two lane highway in Floyd County. About one mile east of the town of Galena, the pickup truck crossed the center line of the highway into the westbound lane, colliding with an automobile being driven in a westerly direction by Ervin Willian. It was raining and there was water on the roadway. Ingram testified that he was driving along the highway at 35 to 40 miles per hour; that he started slipping after he passed the truck stop and could not steer; and that he slid to his left toward the center of the road and struck Willian's car. He further testified that his truck had recapped tires which were in good shape and that his truck was in good mechanical condition. Ingram received a traffic ticket for driving left of the centerline and paid a fine in justice's court in Galena.

In August of 1972 the Indiana State Highway Department performed a crack sealing operation on U. S. 150 from Greenville eastward to a point where the highway becomes four lane. The town of Galena is between these two points. The crack sealing was done by pouring large amounts of tar on the cracks. According to witnesses, instead of pouring the tar just into the cracks, the workmen spread the tar all around the general area where there was a crack. Traffic on the highway caused the tar to be spread all over the road. As a result of the tar being all over the surface, the highway was rendered slick, and when wet it was very slick, like grease. The evidence revealed that this slippery condition continued to exist from the time of the sealing operation in August 1972 until the collision in March 1973.

Evidence was admitted concerning an accident in October 1972, at the west edge of Galena, some three miles from the location of the Willian accident which occurred east of Galena. Witnesses testified that a fire truck attempting to back up the road to the accident scene, slipped off the wet slick roadway. The roadway at that point had also been the subject of the August 1972 crack sealing. Other witnesses also testified to the slick condition of U. S. 150, after the crack sealing, particularly when wet, along the entire distance involved in the sealing operation.

Witness Euna Hartfield testified that no sand was applied on the tar. She called the State Highway garage in New Albany about a month after the sealing work because her car would slide when entering U. S. 150 from her driveway and reported this condition. According to her, sand was then applied to the road. Another witness testified that sand was put on the road, but it did no good.

Further evidence showed that there was a drainage problem near the Western Truck Stop, close to the scene of the collision in question, and that water would stand on the road. There were no "slippery when wet" signs placed in the area.

Evidence was also presented concerning skid test results from tests performed by the State on U. S. 150 in October 1972. Such tests are rated from 0 to 100, the higher the number, the greater the friction. Willians' expert, W. R. McIntosh, retired head of the department of civil engineering at the University of Louisville, testified that "anything below .55 is slick enough to be in trouble. I would say that .33 and .279 are very slick." These last two figures represented the test results on the highway Willians also presented evidence concerning use of signs and drainage and that the segment of the road in question received low ratings in those instances. Evidence was also introduced as to Willian's injuries.

in question. McIntosh also testified the proper method of crack sealing is to pour hot tar into the cracks and sprinkle sand over the top to roughen the surface. He also testified as to proper highway drainage and described the concept of "hydroplaning" of vehicle tires on a layer of water on the highway.

The state presented evidence that there was a little water on the highway, but that it was not very deep. Also, the state's evidence indicated that the left front tire on Ingram's truck was bald which would have caused him to pull to the left. A tire was introduced into evidence, and a tire consultant testified as to the hazardous condition of that tire. ²

ISSUES

1. Whether the trial court erred in overruling the state's objection to the competency of the witness W. R. McIntosh.

2. Whether the trial court erred in admitting evidence of an unrelated accident which occurred on the same road approximately three miles west of the accident which is the subject of this action.

3. Whether the trial court erred in admitting evidence of the condition of U. S. Highway 150 west of Galena.

4. Whether the evidence was insufficient as a matter of law to support the verdicts.

DISCUSSION AND DECISION

Before discussing the specific issues, we note that the state has a general duty to exercise reasonable care in the design, construction, maintenance, and repair of its highways for the safety of the public. State v. Totty, (1981) Ind.App., 423 N.E.2d 637 Ind.App. No. 1-1179-A-301; State v. Thompson, (1979) Ind.App., 385 N.E.2d 198, trans. den.; Indiana State Highway Commission v. Clark, (1978) Ind.App., 371 N.E.2d 1323. Before liability can be imposed, the state must also have actual or constructive knowledge of the danger or peril. State v. Totty, supra; City of Indianapolis v. Bates, (1976) 168 Ind.App. 555, 343 N.E.2d 819, trans. denied.

Issue One

State objected to the competency of W. R. McIntosh as a witness on the ground that he was not a registered engineer in Indiana and that his testimony constituted the practice of engineering. In support of this objection, the state cites Ind.Code 25-31-1-1 prohibiting any person from engaging in the practice of engineering unless such person is a registered engineer in this state, and Ind.Code 25-31-1-2(d) defining the practice of engineering.

The authorities are contrary to the state's position. In State v. Totty, supra, and in State v. Maudlin, (1981) Ind.App., 416 N.E.2d 477, trans. denied, we specifically rejected the state's position and held that a qualified engineer was not rendered incompetent to testify because he was not registered in Indiana. In Maudlin, at 416 N.E.2d 481, Judge Neal stated: "(A) duly licensed practitioner of a profession is not barred from testifying in a court in this state merely because he has not been admitted to practice here."

Our supreme court has held that a witness having the requisite knowledge of the value of property may testify as a valuation witness even though he is not a licensed real estate broker. State v. Vaughan, (1962) 243 Ind. 221, 184 N.E.2d 143. The court there said the purpose of the licensing statute was to prevent unqualified persons from engaging in the real estate business, not to restrict the testimony of competent witnesses.

Courts in other states have reached like conclusions. See Kuisis v. Baldwin-Lima-Hamilton Corp., (1974) 457 Pa. 321, 319 A.2d 914; Cobb v. State, (1973) 50 Ala.App. 707, 282 So.2d 327; W. W. White Co. v. LeClaire, (1970) 25 Mich.App. 562, 181 N.W.2d 790; Hagen v. Swenson, (1975) 306 Minn. 527, 236 N.W.2d 161.

Here, McIntosh's testimony disclosed that he was the retired head of the department of civil engineering at the University of Louisville; he held three degrees in engineering from Rose Polytechnic Institute, and was a registered engineer in Kentucky. The only objection to his qualifications or competency as an expert witness was that he was not a registered engineer in Indiana. Such objection is not well taken.

Nor did McIntosh's testimony constitute the practice of engineering. That specific contention was addressed and rejected by the Court of Appeals of Michigan in W. W. White Co. v. LeClaire, supra, where the testimony of a graduate, experienced architect, not licensed in Michigan was challenged as constituting the practice of architecture within the meaning of the licensing statute. The court held it was not, stating such an argument to be specious.

Further, we observe that the determination of whether a witness is qualified to give an opinion as an expert is within the trial court's sound discretion. State v. Maudlin, supra; Board of Commissioners of Vanderburgh County v. Joeckel, (1980) Ind.App., 407 N.E.2d 274 trans. denied; City of Bloomington v. Holt, Admr., (1977) 172 Ind.App. 650, 361 N.E.2d 1211. In Reid v. State, (1978) 267 Ind. 555, 560, 372 N.E.2d 1149, 1152, Justice Prentice writing for our supreme court stated:

"There can be no hard and fast rule as to the quantum of knowledge required to qualify a witness as an expert in a given field. It has been said that he must be shown to be competent upon the subject concerning which he is to testify."

Thus, we are of the opinion that it is the education, training, knowledge, and experience in a given field rather than licensing by the state of the forum which renders a witness competent to testify as an expert and qualified to give an opinion upon a subject within the scope of his expertise. Cobb v. State, supra. ³

McIntosh was a competent witness and his lack of...