Opinion
Nov. 8, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1122
Eugene Deikman and Harry K. Nier, Jr., Denver, for plaintiffs-appellees.
Gavend, Gleason & Sullivan, Edward R. Gleason, Denver, for defendant-appellant.
COYTE, Judge.
Plaintiffs brought this personal injury action against defendants for damages resulting from an automobile-pedestrian accident. The claim against defendant Margaret Carman was dismissed. The jury returned a verdict for plaintiffs against the other two defendants. Defendant Robert L. Carman appeals. We reverse.
The accident occurred at the intersection of Harvard Avenue and Tejon Street in the city of Englewood. Defendant Cavender was traveling west on Harvard, stopped at a stop sign at Tejon, pulled from the stop sign into the intersection with the intention of making a left turn, and struck or was struck by a vehicle driven by defendant Robert Carman proceeding in the north-bound lane of Tejon. After the impact between the vehicles, the Carman vehicle crossed the south-bound lane of Tejon out of control and struck the plaintiff, who was standing with his bicycle near the curb on the west side of Tejon north of the intersection. The Carman vehicle then jumped the curb and landed in a yard, flattening a clothesline pole before stopping. It was raining at the time of the accident and the speed limit on Tejon was posted at 30 miles per hour. There was a vehicle parked on Tejon immediately southeast of the intersection which tended to obstruct Carman's view of Cavender's approaching vehicle. Defendant Carman testified that he first saw the Cavender vehicle at a distance of ten to twelve feet, that he attempted to swerve, and that he did not apply his brakes. The negligence, if any, of the defendant Carman in failing to stop before striking the plaintiff Daniel Hartado, Jr., was based on excessive speed or possibly upon his failure to brake his vehicle.
During the course of the trial, counsel for plaintiffs posed a hypothetical question to police officer Channell, a qualified expert witness, which included some, but not all, of the circumstances surrounding the accident. Counsel then asked the officer to estimate, based on the posed hypothetical question, the stopping distance of defendant Carman's car had the brakes been applied. Defendant Carman urges that the court erred in allowing this question over his objection because the hypothetical question failed to include facts concerning the collision between the defendants' vehicles, the weather, the surface condition of the street, and the fact that defendant Carman's automobile was not under control after the collision.
Hypothetical questions must include material, undisputed facts which are essential to a fair opinion by an expert. Vaupell Industrial Plastics, Inc. v. Department of Labor and Industries, 4 Wash.App. 430, 481 P.2d 577; Parlier Fruit Co. v. Fireman's Fund Insurance Co., 151 Cal.App.2d 6, 311 P.2d 62; Hancock v. Halliday, 70 Idaho 446, 220 P.2d 384; Gulf Oil Corp. v. Simmons, 197 Okl. 677, 174 P.2d 359; see also Johns v. Shinall, 103 Colo. 381, 86 P.2d 605.
The fact that the defendants had collided prior to defendant Carman's striking the plaintiff was not disputed. The record further indicates that Carman first saw Cavender at a distance of twelve feet, that a vehicle going 30 miles per hour travels 30 to 35 feet during normal reaction time for applying brakes, and that Carman did not have control of his vehicle between impacts. Therefore, it was not shown that Carman had an opportunity to apply his brakes, nor did the answer indicate what effect braking would have had under these road conditions either before or after the impact with the Cavender vehicle. Under these circumstances, the effect of collision was necessary for a fair opinion on Carman's stopping capability and was a material fact essential to the relevance of the hypothetical question and its answer. Since the hypothetical question omitted the undisputed and material fact of the collision and the condition of the street, the court erred in allowing the incomplete, and therefore improper, hypothetical question to be answered.
Furthermore, officer Channell's testimony elicited by plaintiffs' hypothetical question was prejudicial in that it may have led the jury to believe that the defendant Carman could have stopped before hitting the plaintiff. Since the evidence as presented was not only irrelevant but also prejudicial, defendant Carman is entitled to a new trial.
Two contentions of plaintiffs merit comment. First, they contend that officer Channell's response was merely repetitive of testimony given by another officer, who had testified regarding stopping distance and reaction time. This officer's testimony related to mere statistical facts not related to the circumstances of this case and did not call for an answer or conclusion relative to an improper hypothetical question. Secondly, plaintiffs contend that if the hypothetical question was incomplete opposing counsel should have supplied the material omissions to the question. Counsel may not improperly frame a hypothetical question and then cast the burden of supplying material omissions on his opponent.
Our holding on the above question dispels the necessity of considering other errors asserted on appeal.
The judgment against Carman is reversed and the cause remanded for a new trial.
DWYER and ENOCH, JJ., concur.