Urbanski v. Johnson

• Decision Date: 01 August 1978
• Citation: 581 P.2d 948,283 Or. 169
• Parties: Peter P. URBANSKI, Appellant, v. Fredrick A. JOHNSON, Respondent. Betty L. URBANSKI, Appellant, v. Fredrick A. JOHNSON, Respondent. . *
• Court: Oregon Supreme Court

Page 948

581 P.2d 948

283 Or. 169

Peter P. URBANSKI, Appellant, v. Fredrick A. JOHNSON, Respondent.

Betty L. URBANSKI, Appellant, v. Fredrick A. JOHNSON, Respondent.

Supreme Court of Oregon,In Banc. ^*

Argued and Submitted April 4, 1978.

Decided Aug. 1, 1978.

Robert J. Miller, Sr., of Blyth, Procelli & Moomaw, Beaverton, argued the cause and filed briefs for appellants.

James C. Tait, of Hibbard, Caldwell, Canning, Bowerman & Schultz, Oregon City, argued the cause and filed a brief for respondent.

HOWELL, Justice.

Plaintiffs, husband and wife, filed these separate actions to recover damages for personal injuries sustained in an automobile accident. A jury returned verdicts for defendant in both actions, which were consolidated for trial, and plaintiffs appeal.

The sole issue on appeal is whether the trial court erred in excluding the testimony of an expert witness.

The collision occurred at the intersection of Folsom Road and Highway 224 in Clackamas County. The highway, which runs generally north and south, consists of one through lane for each direction, and a left turn lane for each direction. The plaintiffs were travelling south and moved into the left turn lane preparatory to turning left to Folsom Road. Plaintiffs testified that defendant's vehicle came toward them in a northerly direction but in the other left turn lane directly in front of plaintiffs. As plaintiffs realized defendant was not going to stop, they turned left and the collision occurred. Defendant and his passenger testified that they were travelling north in the through lane, they were never in the meridian left turn lane, and when defendant saw plaintiffs turn left in front of him he turned left in an unsuccessful attempt to avoid the collision.

Plaintiffs attempted to introduce the testimony of a consulting engineer to rebut testimony of a police officer that he found glass and debris in defendant's lane of traffic. The defendant's objection on the ground of insufficient foundation was sustained. Plaintiffs made an offer of proof, and the engineer, using some photographs showing skid marks at the scene and a police report, and by using what is apparently an accepted drafting technique, testified as to the position of the vehicles just prior to the collision, the point of impact, and the position of the vehicles after the collision. Plaintiffs' offer of proof was rejected by the trial court on the ground that the evidence was not the proper subject of expert testimony. ¹ We agree with defendant that the evidence offered was without sufficient foundation and therefore too speculative.

We believe this case is controlled by Marshall v. Martinson, 268 Or. 46, 518 P.2d 1312 (1974). In Marshall we held that the trial court did not err in excluding the expert testimony of an engineer who wanted to testify as to the position of the vehicles before and after the impact, based on facts assumed by a hypothetical question. We said in that case that even if sufficient facts were introduced to support the hypothetical assumptions, the testimony was properly excluded because it was too speculative. Specifically we said:

"The expert witness in this case was called upon to go far beyond the expression of an opinion relating to speed or point of impact. By the hypothetical question to which...