Ziegler v. Crofoot
| Decision Date | 08 December 1973 |
| Docket Number | No. 47051,47051 |
| Citation | 516 P.2d 954,213 Kan. 480 |
| Parties | Lester ZIEGLER, Appellant, v. John W. CROFOOT and Western Associates, Inc., a Corporation, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 60-456 requires that an expert witness base his testimony upon facts personally perceived by or known to him or made known to him at the hearing. 'Perceived' means knowledge acquired through one's own senses (K.S.A. 60-459(c)), and 'made known' refers to facts put in evidence. (Following Casey v. Phillips Pipeline Co., 199 Kan. 538, Syl. 1, 431 P.2d 518.)
2. The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge, and unless the judge excludes the testimony he shall be deemed to have made the findings requisite to its admission.
3. An expert testifying as to his investigation of a highway accident should not be permitted to give opinion testimony based on conjecture and speculation, but if his testimony amounts to an honest expression of professional opinion that is sufficient to justify its admission if the requirements of K.S.A. 60-456(b) are otherwise met.
4. The test of competency of an expert witness is whether he discloses sufficient knowledge of the subject of inquiry to entitle his opinion to go to the jury, and the question of the degree of his knowledge goes more to the weight of his testimony than to admissibility.
5. Under K.S.A. 60-456(d) expert testimony in the form of opinions or inferences otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact.
6. Opinion testimony is not without limitations and although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.
7. In an intersection accident if all the requirements of K.S.A. 60-456 are otherwise met an expert may be permitted to give his opinion as to actions and circumstances of the parties, if any, which contributed to the accident.
Gene E. Schroer, Topeka, argued the cause, and Leo N. Johnson, Council Grove, was with him on the brief for appellant.
Arthur E. Palmer of Goodell, Casey, Briman, Rice & Cogswell, Topeka, argued the cause, and Ernest J. Rice, Topeka, formerly of the same firm, was with him on the brief for appellees.
This appeal comes as a result of a two vehicle intersection accident January 17, 1969, on highway K-177 north of Council Grove, Kansas.
The plaintiff, Lester Ziegler, was driving his pickup truck east on a township road and turned south at an intersection onto the highway. The defendant John W. Crofoot was driving south on said highway. The issues involved in the trial were the negligence of defendant by reason of the speed of his vehicle under the dark and foggy conditions then existing, and the contributory negligence of plaintiff by reason of failing to yield the right-of-way to defendant's wehicle. The jury returned a defendants' verdict and plaintiff appeals.
The questions raised relate solely to the admissibility of testimony given on cross-examination by Don Reed, the highway patrolman who investigated the accident and made an accident report. The accident occurred at 6:25 p. m. The patrolman arrived at the scene twelve minutes later. During the trial the patrolman qualified as an expert witness with sixteen years of experience in accident in accident investigation. No question is raised here as to his general qualifications.
On direct examination the patrolman testified concerning the physical facts observed by him during his investigation including measurements as to skidding and location of the vehicles, measurements of the highway and the township road, weather and road surface conditions, identity of the vehicles and statements by the drivers. He testified on direct examination that the physical facts observed were recorded on an accident report prepared by him.
The third page of this report contained a drawing on which he recorded the pertinent measurements at the scene and the routes traveled by the vehicles. Defendant's attorney objected to the introduction of this drawing unless the whole report be admitted in evidence. The objection was overruled and the drawing was admitted in evidence.
The questions raised in this appeal relate to the cross-examination of this witness by defendant's attorney. On the second page of the accident report the patrolman had noted certain circumstances contributing to the accident. The patrolman had indicated by X marks in spaces provided on the form that driver number 1 (the plaintiff) had failed to yield the right-of-way, and as to driver number 2 (the defendant) he indicated there were no actions contributing to the accident. As the cross-examination progressed the patrolman seemed hesitant to give his opinion as to the circumstances which contributed to the accident. Defendant's attorney continued to press his cross-examination by using the second page of the accident report to refresh the patrolman's recollection. That part of the report was not in evidence but it had been previously prepared by the witness in the course of his duties. After the patrolman's recollection was refreshed the following questions were asked, answered and now appear in the record:
'BY MR. RICE: (attorney for defendant)
'Q. Let me ask you one more time, now, Trooper: You have in front of you the same part of your report that I do, don't you (showing Exhibit C to witness for comparison).
'A. (Examining both documents) Yes, sir.
'Q. Let me ask you this question: Based upon your investigation, based upon your experience, based upon your training, and based upon all the factors you found at the scene, that you gleaned from your entire investigation of this accident, both that night, the next day, did you in your report-answer this yes or no-indicate whether you determined there were any contributing actions on Mr. Crofoot's cause, toward this accident?
'A. Yes, I did.
'Q. And what did you indicate as a result of your investigation on your official report insofar as any contributing action on the part of Mr. Crofoot was concerned?
'A. On my report I'm required to indicate 'Contributing circumstances' of one and/or all drivers of vehicles.
'Q. All right.
'A. On Mr. Crofoot's part-on Mr. Crofoot I found that I could indicate 'None',--
'Q. Now, based upon your experience and your training and your 16 years with the Highway Patrol, and the various accidents you have investigated, and based upon your investigation that night of this accident, and all factors made known to you through your official investigation that night and the next day, did you determine-answer this yes or no-as a result of your investigation, and did you form an opinion, as to whether or not there were any contributing factors on the part of Mr. Ziegler insofar as this accident's concerned? And answer thay yes or no.
'A. Yes.
'Q. All right; and what was that?
'A. They show on my report, as I'm required to do, 'Contributing circumstances', and on Mr. Ziegler, who I indicate as being Driver No. 1, I show that he failed to yield the right of way.
'MR. RICE: No further questions.'
Basically, plaintiff's contentions are (1) that the patrolman's opinion testimony was not based upon sufficient foundation facts and (2) that said testimony usurped the province of the jury by stating ultimate facts which should have been reserved for the jury's final determination.
The Code of Civil Procedure governs the admissibility of expert and other opinion testimony. In our present case the patrolman testified as an expert. His qualifications in the field of accident investigations were not questioned. Our Kansas Statutes Annotated bearing upon the subject of testimony by an expert are as follows:
'(a) (Relates to opinions of non-experts.)
'(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
'(c) Unless the judge excludes the testimony he shall be deemed to have made the finding requisite to its admission.
'(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.
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