Thorpe v. Com., 811394

• Decision Date: 18 June 1982
• Docket Number: No. 811394,811394
• Citation: 292 S.E.2d 323,223 Va. 609
• Parties: Robert S. THORPE, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 323

292 S.E.2d 323

223 Va. 609

Robert S. THORPE, Jr. v. COMMONWEALTH of Virginia.

Record No. 811394.

Supreme Court of Virginia.

June 18, 1982.

Geo. P. Blackburn, Jr., Fairfax (John C. Hale, Duvall, Blackburn & Hale, Fairfax, on briefs), for appellant.

Jeffrey A. Spencer, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Walter A. McFarlane, Deputy Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

COCHRAN, Justice.

A jury found Robert S. Thorpe, Jr., guilty of involuntary manslaughter in the traffic death of Christopher Gainer and fixed his punishment at confinement in jail for six months and payment of a fine in the amount of $1,000. By final order entered May 22, 1981, the trial court entered judgment on the verdict but suspended the jail sentence and permitted Thorpe to pay the fine and costs within two years. On appeal, the dispositive question is whether the trial court erred in permitting an expert in accident reconstruction to testify concerning Thorpe's speed at the time of the collision.

The accident occurred shortly after 3:00 p.m. on June 6, 1980, at the intersection of Route 123 and Clifton Road, when a loaded 10-wheel gravel truck operated by Thorpe sideswiped and fell across a Ford Mustang operated by Gainer. Crushed in the collision, Gainer died from asphyxiation.

Gary Haines, a Commonwealth witness, testified that he was driving north on Route 123 about 50 miles per hour when he observed a car and a dump truck following him. The truck passed the car, and rapidly overtook and passed Haines when he slowed almost to a stop at an access road. As Haines approached the Clifton Road intersection, he saw the Gainer Mustang stopped with its left-turn signal flashing. (A passenger in the Gainer vehicle testified that Gainer activated his left-turn signal at the intersection). Haines estimated that the truck was exceeding a speed of 50 miles per hour as it entered the intersection. The truck swerved across the double yellow lines, "went up on two wheels," and fell on top of the Mustang. The only signals that Haines observed on the truck were its brake lights.

Officer Grant Trounton, of the Fairfax County Police Department, investigated the accident. Thorpe told Trounton that he believed the Mustang was going to turn right, but when he began to pass it on the left, it moved to the left. The officer said that the posted speed limit on Route 123 approaching the accident scene was 45 miles per hour.

Trounton testified that he and other officers measured "scuff marks that appeared to have been left by the truck." On August 12, 1980, Trounton ran a skid test by driving a police cruiser northbound along Route 123 where he had previously observed the scuff marks. Trounton measured the skid marks laid down by his cruiser at 45 miles per hour and communicated all his information to Officer Hank Hughes, who was represented to be an expert in accident reconstruction.

The Commonwealth presented Hughes as an expert to give his opinion concerning the speed of Thorpe's truck in accordance with a "nationally recognized" formula. Hughes first testified out of the presence of the jury. He said that Trounton's test was made for the sole purpose of ascertaining the resistance of the road surface to obtain the "drag coefficient." Hughes testified that he used Trounton's test data to calculate the minimum speed required to cause Thorpe's truck to sideslip. Hughes asserted that because the test was conducted only to determine the resistance of the road, the size and weight of the test vehicle in establishing the drag factor were unimportant.

Hughes testified that once he knew the drag factor of the road, he could use the measurements of the "yaw" scuff marks to calculate the minimum speed required to cause the sideslip of a vehicle traveling the arc defined by the scuff marks made by the dump truck. Hughes maintained that he could determine to a reasonable degree of scientific certainty the minimum speed of the truck just prior to impact. He testified that if the Thorpe truck was overloaded, if the load was overbalanced, or if the load shifted, the truck would be more susceptible to turning over. There was evidence that the truck when it left the quarry had a total weight of 53,560 pounds, 4,060 pounds over the legal limit.

Hughes conceded that he never examined the truck and was not familiar with its suspension system, tires, or brakes. He insisted, however, that the suspension system was irrelevant, and that if the brakes on any truck except a tractor-trailer are properly adjusted, they will lock when applied.

Thorpe acknowledged that Hughes was a qualified expert but argued that he was not a physicist or engineer, that he had not examined the truck, or its brakes, wheels, and suspension system, and that he was testifying to speed based on a test made by an automobile rather than a truck. There were too many variables that Hughes had not tested, Thorpe said, to permit him to testify before the jury. Nevertheless, the trial court, overruling Thorpe's objection,...