Opinion
Rehearing Denied Feb. 6, 1973.
Page 1129
Harden & Napheys, Ralph B. Harden, Fort Collins, for plaintiffs-appelles.
Johnson, Anderson & Dressel, Samuel L. Anderson, Fort Collins, for defendants-appellants.
PIERCE, Judge.
Debra Cox was injured while riding as a guest in a car driven by defendant, Russell Bonser (Russell), and owned by defendant Willis Bonser. This action was brought by Debra Cox and her parents seeking damages for the injuries she sustained. The matter was tried to a jury and a verdict was returned against defendants.
The following facts appear in the record. On the night of the accident, plaintiff accompanied Russell and two other friends to an amusement park in Denver. As they were returning to their homes in Loveland in the early morning hours of June 6, 1970, they were involved in a one-car accident on Interstate Highway 25. Russell was driving and Debra was asleep in the back seat.
Russell contended at trial that the accident occurred after he had swerved to avoid a piece of tire on the highway and ran off the road into the center median. Evidence revealed that after leaving the paved portion of the highway his car traveled 151 feet before he applied his brakes, during which time it was his admitted intention to maintain his speed and reenter the paved highway. The evidence further showed that after he applied his brakes he skidded 115 feet, became airborne for another 118 feet, and struck a cement embankment. None of the passengers witnessed the circumstances leading to the vehicle's departure from the highway, all being asleep.
After being qualified as experts in accident investigation, three highway patrolmen who investigated the accident were allowed to estimate the speed at which defendant's car was traveling prior to departing from the paved portion of the highway. Each estimated that the car was traveling between 85 and 100 miles per hour. They also each testified that there appeared to be nothing on the highway to cause the driver to enter the median.
Defendants appeal the jury's verdict, raising the following issues:
1. Were the highway patrolmen who testified qualified to offer opinions under the circumstances of this case?
2. Was there sufficient evidence to submit the issue of willful and wanton negligence to the jury, and if there was, was defendant entitled to an instruction that speed alone would not establish willful and wanton misconduct?
3. Was the verdict excessive as a matter of law?
4. Did the trial court abuse its discretion when it refused to consolidate this action with another suit against defendants?
I.
EXPERT TESTIMONY
The Colorado Supreme Court has recently clarified the rule in regard to expert testimony by investigating police officers. Dolan v. Mitchell, Colo., 502 P.2d 72. In considering whether to allow such testimony the trial court must first decide whether a witness is qualified to express an opinion on a subject appropriate for expert testimony. Thereafter, the basis of the expert's opinion is subject to cross-examination, and the fact that cross-examination reveals that he does not have adequate facts or knowledge to support his opinion goes only to the weight to be given to that opinion and not to its admissibility.
In approaching the first part of the test, Colorado trial courts have a great deal of discretion in determining whether a particular person is qualified as an expert. Starkey v. Bryan, 166 Colo. 43, 441 P.2d 314. The rule in Colorado is that in order to be qualified as an expert the witness need only possess 'peculiar knowledge or experience, not common to the world, which renders their opinions . . . (valuable in aiding) the court or the jury in determining the questions at issue.' National Fuel Co. v. McNulty, 65 Colo. 176, 177 P. 979. In the case before us, each of the highway patrolmen had been on the Patrol for at least three and one-half years, had investigated a large number of accidents, and had attended accident investigation training school with periodic refresher courses. They each testified that they were trained to estimate speed from physical facts and were required to determine the speed of vehicles in every accident they investigated. Furthermore, all were familiar with the highway. There was an adequate foundation to qualify these patrolmen as experts and it was not an abuse of discretion for the trial judge to allow them to express opinions based on their investigations. See Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229.
Defendant argues, however, that the evidence revealed that none of the patrolment had any expertise in determining speeds on surfaces other than pavement, and that none was able to determine speed scientifically from damages to a vehicle after impact. Much is made of the fact that the patrolmen engaged in no mathematical or scientific calculations to determine the speed, but rather based their opinions on gross estimates. This deficiency in each witness's testimony was developed on cross-examination. This is the type of information that goes to impeachment of the expert's opinion and does not affect its admissibility as evidence. Dolan v. Mitchell, Supra. Thus, we perceive no error in allowing these patrolmen to testify as to their opinions on defendant's speed.
II.
WILLFUL AND WANTON CONDUCT
Defendants contend that, even if the officers' testimony as to excessive speed is allowed, it is the only evidence of wrongdoing by defendants, and therefore fails to establish willful and wanton negligence. See Steeves v. Smiley, 144 Colo. 5, 354 P.2d 1011. Defendants' argument is essentially that speed alone will not establish a prima facie case of willful and wanton negligence, and that therefore they were entitled to a directed veridct. They further argue that if it were proper to submit the issue to the jury they were, at least, entitled to an instruction that proof of speed, alone, was insufficient evidence to support a finding of willful and wanton conduct. This is not an accurate statement of the law in Colorado.
Our Supreme Court, in Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038, in considering what is willful and wanton conduct under the Colorado Guest Statute said:
'Under the guest statute, the facts must show more than negligence. To willfully and wantonly disregard the rights of others requires a consciousness of heedless and reckless conduct by which the safety of others is endangered. . . .
The demarcation between ordinary negligence, and willful and wanton disregard, is that in the latter the actor was fully aware of the danger and should have realized its probable consequences, yet deliberately avoided all precaution to prevent disaster. . . .'
In no Colorado case, of which we are aware, has the court dealt with a fact situation involving an accident caused only by speed. All of the cases coming to our attention which have been concerned with speed have also dealt with some other aggravated circumstances which were, in combination with speed, sufficient to sustain a claim of willful and wanton conduct. However, in Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067, the Supreme Court specifically stated that 'speed may, under some circumstances, indicate in and of itself the reckless disregard and indifference to the consequences that may ensue to the guest in an automobile.' Therefore, we do not agree that defendants were entitled to an instruction that speed alone is insufficient to support a finding of willful and wanton negligence.
Furthermore, under the facts before us, speed is not the only factor to be considered. By defendant's own testimony, he maintained his speed while in the median in hopes of reentering the highway. If the jury believed that defendant was traveling at the excessive speed of 85 miles per hour or more and intentionally maintained this speed while in the median, they could rightfully conclude that defendant had committed an act which he knew was dangerous to others and which he nonetheless performed heedlessly without regard to the consequences and the rights and safety of others within the terms of the guest statute. Pettingell v. Moede, Supra. Where, as here, there is evidence from which reasonable minds could differ as to whether the conduct amounts to willful and wanton negligence, it is proper to submit the issue to the trier of the facts with proper instructions on willful and wanton negligence. Sheldon v. Higinbotham, 166 Colo. 387, 444 P.2d 272; Ferguson v. Hurford, Supra; Steeves v. Smiley, Supra.
III.
DAMAGES
Defendants next contend that the damages awarded were excessive as a matter of law. The rule in Colorado is that jury verdicts awarding damage will not be set aside unless it clearly appears that the award is grossly excessive. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450; DeMott v. Smith, 29 Colo.App. 531, 486 P.2d 451. Debra was hospitalized for two months after the accident, during ten days of which she was comatose. Since then she has gone through a long and painful period of rehabilitation. The evidence details that plaintiff continues to suffer from loss of memory, has difficulty controlling her bladder, has extensive scarring over portions of her body from burns she received in the accident, and will continue to suffer a 1 to 2% Permanent partial disability for orthopedic reasons. The jury award of approximately $76,000 was not grossly excessive as a matter of law, and therefore we will not disturb that verdict.
IV.
CONSOLIDATION
Finally, defendants argue that this matter should have been consolidated with another trial pending against defendants arising out of the same accident. C.R.C.P. 42(a) gives the trial court discretion to consolidate proceedings which involve a common question of law or fact. Our review of these proceedings convinces us that no reversible error resulted from the refusal to consolidate, and therefore no abuse of discretion has been shown.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.