Williams v. McCoy, No. 17980

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: SHRUM; PARRISH
• Citation: 854 S.W.2d 545
• Decision Date: 23 April 1993
• Docket Number: No. 17980
• Parties: Dwight WILLIAMS, Kathryn Harr, and Frankie Reaves, Plaintiffs-Appellants, v. Charles D. McCOY, Defendant-Respondent.

Page 545

854 S.W.2d 545 Dwight WILLIAMS, Kathryn Harr, and Frankie Reaves,
Plaintiffs-Appellants,
v.
Charles D. McCOY, Defendant-Respondent. No. 17980. Missouri Court of Appeals,
Southern District,
Division One. April 23, 1993.
Motion for Rehearing or Transfer
Denied May 6, 1993.
Application to Transfer Denied June 29, 1993.

Page 547

H. Lynn Henry, Henry & Henry, West Plains, for plaintiffs-appellants.

Noble Leighton, Mountain Grove, for defendant-respondent.

SHRUM, Judge.

This is a suit for damages for the wrongful death of Joyce Williams who died from injuries she sustained when the motor vehicle she was driving collided with a vehicle driven by the defendant, Charles D. McCoy. The plaintiffs are Joyce Williams's

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husband Dwight Williams and her daughters Kathryn Harr and Frankie Reaves.

Pursuant to a jury verdict, the trial court entered a judgment for the defendant. In revised order of presentation, we summarize the plaintiffs' preserved assignments of trial court error:

(1) Refusing to admit expert opinion testimony about the point in the roadway where the impact occurred while allowing the defendant and his passenger to testify about the point of impact;

(2) Denying the plaintiffs' request for a new trial, based on their claim of "newly discovered opinion evidence" concerning skid marks left by the defendant's tires;

(3) Permitting testimony about the "good driving record" of the defendant;

(4) Permitting the presence of the defendant's family in the courtroom during the trial; and

(5) Permitting cross-examination of Dwight Williams about a relationship he developed with a woman following his wife's death.

For reasons to be discussed, we reject the arguments made by the plaintiffs and affirm the judgment of the trial court.

ISSUE: EXPERT OPINIONS OF POINT OF IMPACT

Facts

The accident occurred at approximately 7:45 p.m., February 5, 1990, on U.S. Highway 60 in Howell County, Missouri, at a point about 502 feet west of the intersection of Route U and Highway 60. From the collision site to its intersection with Route U, Highway 60 runs downhill and curves gradually to the left. The portion of Highway 60 where the accident occurred is separated by double yellow lines into two driving lanes, one for eastbound traffic and one for westbound. The outer edge of each lane is marked with a white line; total roadway width inside the white lines is 23 feet 7 inches. Each lane has a paved shoulder exceeding 10 feet in width.

The deceased was driving a 1988 Pontiac Bonneville west on Highway 60 and the defendant was driving east in a 1983 International truck tractor, described at trial and elsewhere in the record as a "cabover" and a "bobtail". The vehicles collided head-on with a passenger-side-to-passenger-side initial contact. Following the impact, the Pontiac came to rest facing east in the eastbound lane, 141 feet east of the crash site, and the truck on its driver side just off the shoulder of the eastbound lane, 196 feet east of the crash site. With the exception of the occupants of the two vehicles involved, there apparently were no witnesses to the collision.

Missouri Highway Patrol Sergeant Tony Selvey arrived at the crash scene at 7:59 p.m. and investigated the accident for about two hours. The next day, Highway Patrol Sergeant James McNeill accompanied Selvey to examine the accident scene. McNeill also examined the Pontiac, which had been transported to West Plains.

Sixteen days after the collision, William Morton, the plaintiffs' accident analyst, met with the plaintiffs' lawyer and sergeants Selvey and McNeill at the accident scene. At that time McNeill marked the highway surface with green paint to show the location of tire skid marks.

At trial, most of the testimony of Selvey, McNeill, Morton, the defendant, and the defendant's passenger concerned evidence from which the jury could determine the location of the vehicles relative to the centerline of the highway at the time of collision.

Testimony About Skid Marks

There were two parallel tire skid marks on the road surface, caused by one of the pairs of tires on the rearward set of dual wheels on the defendant's truck. There were no skid marks from the Pontiac. A principal question concerning the truck's skid marks was whether they were produced by a pair of tires on the driver side or the passenger side.

The skid marks, of unequal length, ran at an angle to the normal direction of travel on the roadway. From Selvey's testimony, we learn that the northernmost mark, the longer of the two, measured 17 feet 3 inches. It began at a point 9 feet 7 inches

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north of the inside of the white line marking the outside edge of the eastbound lane and ended on the southernmost of the two yellow lines. The shorter of the skid marks, 9 feet 8 inches in length, ended simultaneously with the longer one. During cross-examination by the defendant's attorney, Selvey stated his opinion that "the driver's side left the skids" but on re-direct examination said, "I can't tell you exactly for sure that it's left or right side." Selvey said he did not believe impact occurred "during the skid" because there were no "jerk marks" in the skid marks. McNeill said he thought the collision took place "at the end of the skids." McNeill was not asked his opinion about which pair of tires left the skid marks.

Asked by the plaintiffs' attorney for his opinion of the position of the defendant's truck "with respect to the skid marks," Selvey said the "right front of the tractor-trailer would have been near the center line, which would have been between the two yellow lines if there would have been a center line there" and that the driver side front of the truck would have been "approximately six or seven feet" into the westbound lane.

Accident analyst Morton said it was "inconclusive" whether the skid marks were caused by tires on the driver side or the passenger side of the truck. He said his earlier deposition opinion that it was a driver side skid was based on "the trooper's report." His computer-assisted analysis, which took into account such factors as the measurements of the vehicles and the collision contact points, gave him "a reading more to the [passenger side]."

Relation of Curvature and Superelevation of Road to Skid Marks

Selvey, McNeill, and Morton testified about the relationship between the curvature and superelevation of the road and the skid marks. They agreed that as a vehicle negotiates a curve at speeds of 50 to 55 miles per hour its weight shifts to the "outside" of the curve, and the side of the vehicle with the greater weight produces more heat and darker skid marks. In Selvey's words, "The side that's got the most pressure on it will leave the darker skid, provided there are skids on both sides." Selvey and McNeill said an eastbound vehicle traveling 50 to 55 miles per hour through the curve where the accident occurred would have experienced a weight shift to the outside of the curve, which would have been the passenger side of the vehicle.

Gouge Marks in Road Surface

One of the plaintiffs' exhibits was a photograph of the accident scene showing gouge marks in the road surface. The photograph shows one gouge mark between and parallel to the yellow lines in the center of the road and numerous other pavement gouges, in a semi-circular pattern, beginning on the northernmost yellow line and occurring only in the westbound lane. From bituminous material adhering to the bottom of the Pontiac, Selvey and McNeill concluded the gouge marks were made by the Pontiac and that the linear gouge mark between the yellow lines was caused by the Pontiac's driver side frame rail. Selvey testified he measured the distance between the gouge marks and the end of the tire skid marks to be 10 feet 5 inches. Both officers testified that, in their opinion, the gouge marks were made upon impact, Selvey saying the impact "drove the car down almost immediately."

Morton agreed with Selvey and McNeill that the gouge marks resulted from the immediate downward movement of the Pontiac upon impact and that the linear gouge mark between the yellow lines was caused by the driver side frame rail on the Pontiac.

Other Evidence at the Crash Site

Selvey testified fuel was spilled at the accident scene. He said the fuel spill was in the westbound lane "near the area of impact.... And then it came back into the eastbound lane." Selvey said he found glass from a driver side window of the Pontiac in the eastbound lane, slightly east of the gouge marks. He stated his opinion "that, on impact, that when the car started folding up, that the window broke out" in a manner "similar" to an explosion.

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Point of Impact Testimony

During the testimony of Selvey and McNeill, the trial court sustained defense objections to the plaintiffs' attempts to elicit testimony about "the area where you believe the collision occurred," "the area of impact," and "the area of this collision." The court struck a reference by Selvey to "the point of impact." Asked by the plaintiffs' lawyer (over the objection of defense counsel) where he would "place the front passenger corner ... of the tractor, at the time of the collision," McNeill responded, "I'd put it across the center line." Without objection from defense counsel, Morton testified he had "no basis to disagree" with Selvey and McNeill that the front passenger side corner of the truck was between the yellow lines "when this occurrence took place." Given the width of the truck--nearly eight feet--Morton estimated the truck had intruded 60 to 61 inches into the westbound lane.

The defendant and his passenger, William Turnbow, also testified about the place in the roadway where the impact occurred. Both men said it was dark at the time of the accident, both vehicles had their headlights on, there were no other vehicles in sight, and the truck was traveling at a speed of 50 to 55 miles per hour.

Turnbow said he saw the...