Stein v. Ohlhauser

• Decision Date: 23 October 1973
• Docket Number: No. 8907,8907
• Citation: 211 N.W.2d 737
• Parties: Sharon K. STEIN, Plaintiff and Appellee, v. Wilbert F. OHLHAUSER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 737

211 N.W.2d 737

Sharon K. STEIN, Plaintiff and Appellee, v. Wilbert F. OHLHAUSER, Defendant and Appellant.

Civ. No. 8907.

Supreme Court of North Dakota.

Oct. 23, 1973.

Syllabus by the Court

1. In order to establish a foundation for expert testimony, a showing must be made that the subject matter is one where expert testimony is accepted by the scientific community and the courts and that the proffered expert has sufficient expertise to aid the jury in the area of his competence.

2. A non-eyewitness expert qualified to testify as to speed based on skidmarks alone is not thereby qualified to testify as to speed of a vehicle based on skidmarks plus physical damage to the vehicles involved in a collision.

3. Establishment of foundation for expert testimony as to speed, based on both skidmarks and crash damage, must include proof that such determination of speed is scientifically possible and that the witness is sufficiently familiar with the method of doing so to be accepted as an expert in the field.

4. Whether a proffered expert is sufficiently qualified in a particular field of competence and whether the subject matter of his testimony is an appropriate subject for expert testimony are matters within the judicial discretion of the trial court, subject to reversal only in cases of abuse of discretion.

5. The granting of a new trial because of error in allowing an expert to give an opinion without sufficient foundation for such opinion was proper.

6. An order granting a new trial is more readily affirmed than an order denying a new trial.

C. J. Schauss, Mandan, for plaintiff and appellee.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for defendant and appellant.

VOGEL, Judge.

This is an appeal from an order granting a new trial to the plaintiff, Stein, on the basis of the trial court's decision that it erred in allowing in evidence the opinion testimony of an expert witness as to the speed of a motor vehicle, based on skidmarks and other factors, including physical damage to the vehicles involved in a collision.

Stein had the right-of-way at an intersection which was protected by a stop sign. Ohlhauser, the defendant, after having stopped at the stop sign, proceeded into the intersection and into the path of the Stein car. Ohlhauser claims that Stein was contributorily negligent because she was speeding and that this negligence was a proximate cause of the collision.

The case was tried to a jury, which returned a verdict in favor of Ohlhauser for a dismissal of Stein's complaint. The trial court granted a new trial on Stein's motion.

Ohlhauser had employed an expert, whose general qualifications to testify were not questioned. Objection was made to a hypothetical question asked him, the objection was overruled, and the expert witness testified that it was his opinion that Stein was traveling just over fifty-one miles per hour immediately prior to braking her vehicle at a point thirty-nine feet from the place where the collision occurred.

On the motion for new trial, the trial judge concluded that he had erred in permitting the expert witness to testify to the speed of the vehicle, where the determination was based not only on skidmarks but also on damage to the two vehicles. The court stated that using the physical damage to the vehicles as a factor in arriving at the opinion of speed was, in its opinion, not sound or reasonably scientific nor based on reasonable engineering certainty. The court relied upon the rule of Brugh v. Peterson, 183 Neb. 190, 159 N.W.2d 321, 29 A.L.R.3d 236 (1968), to the effect that an expert witness properly qualified may testify to minimum speed based on skidmarks alone, but not as to speed based on skidmarks and collision damage.

The speed limit at the point of the accident was twenty-five miles per hour. In testifying that the minimum speed of the Stein car was fifty-one miles per hour, the witness stated that his opinion 'is based in part on the damage to the vehicles,' and that in addition to the amount of speed necessary to have laid down thirty-nine feet of track, 'the crash or impact damage to the vehicle or the vehicles in this case' enters into his opinion.

Aside from stating his general engineering background and qualifications to testify as to speed based on skidmarks alone (such as a determination of the coefficient of friction on the road in question), the following constitutes the entire specific testimony as to the qualifications of the witness to draw conclusions as to speed based on skidmarks plus damage to the vehicles, and as to the reliability of and scientific basis for such testimony in general:

'Q. Now, how many accidents have you been involved in in reconstruction or analysis, Mr. Brena?

'A. Quite a few. Not quite a hundred but it would be, I would say, between 50 and 100 to be conservative.

'Q. Have you participated in any tests which involved the actual crushing of automobiles?

'A. Yes.

'Q. Where were those tests conducted?

'A. At the University of Minnesota.

'Q. How were they conducted?

'A. Well, you may have heard of Professor Jim Ryan who ran a series of tests on a national basis and having national interests at the University of Minnesota where he would pick up a vehicle by means of a crane and I think he was using a magnetic release but it would pick a car up and then drop it. Now, we can figure out just through free fall formula how fast that body is going to be traveling when it would hit a concrete or any surface when it would reach ground. Then it would only be necessary to hold it, so high, whatever the distance would be in order to approximate, let's say, five miles an hour, fifteen or twenty and these were run for a series of heights to approximate a series of speeds to determine after the car had fallen how much damage resulted to the car at various speeds.

'Q. And coming on contact with any unyielding surface?

'A. Yes.

'Q. Is there a difference between that and two vehicles coming in contact?

'A. Yes. In that when two vehicles are in contact assuming them both to be in motion first, they do not have the rigidity of let's say the concrete pad on which the vehicles are dropped. Each one is subject in the case of a collision to the momentum of the other one, the impact, the force. There is an impulse when one body hits another body, this is an impulse, it's a force which acts for a period of time and at the same time this moving body has what is called momentum and this is the weight of the body times its velocity and this gives us a large value. Here the more weight the bigger the difference it makes so far as momentum is concerned but the effect of a car on a stationary object such as the side of a bridge or concrete slab or floor is far different because the floor or the side of a building is an unyielding surface whereas another car does yield.

'Q. Crushens (sic) in effect?

'A. It will be in effect crushen (sic) it. It will absorb energy imparted from the other vehicle and that energy has a subsequent effect on the behavior of that car whereas the concrete does not, forgetting about the minute or little chips, but you do not move that concrete floor. It absorbs the energy so this again we are into the potential thing or kinetic energy when we drop this, there is a certain amount of energy that has to be dissipated. Since it not absorbed by the concrete except that the temperature (is) raised a little bit, all of that has to be taken by the car itself and this shows up in deformed 'A' frames, the frame itself, engine, so on, fire wall, wheel wells, the body damage.

'Q. Is it correct to state that with a two vehicle collision a car in motion has a certain motion, a portion of that energy is absorbed by braking, a portion of that energy is absorbed by the crushed collision between the two vehicles and a final position (sic) of that energy is absorbed by movement of vehicles after impact to the point where they come to rest?

'A. Yes, this is how the energy is dissipated in these areas.'

It is apparent from the foregoing that the witness has not explained how he was 'involved in' the reconstruction or analysis of fifty to one hundred accidents, nor does he explain the extent of his 'participation' in the tests of Professor Ryan. These matters go to his individual qualifications. More serious, his own testimony clearly shows that the tests which constitute his experience and the basis for his claim of scientific reliability are not comparable to actual collisions. He admits that the tests do not prove how cars behave in actual accidents, because cars do not have the rigidity of concrete; on the contrary, they have a momentum which a concrete crash pad does not have, and they yield where concrete does not.

There is nothing in the record to show that there is any scientific way to determine speed from crash damage other than gross estimation, based to some extent on experience and judgment. Mr. Brena used a formula in his testimony (apparently placing it on the blackboard, and if computations were shown to the jury, they are not part of the record here), but the record indicates that the formula related to computing stopping distances from skidmarks only, and not from dissipation of energy by crashing into other vehicles.

Some of the testimony of the witness seems rather bizarre, as where he testified that it does not matter whether tests for coefficients of friction are conducted in July or in March, that tire tread design has no significant effect upon the determination of...