Opinion
June 27, 1962
Appeal from the Genesee Trial Term.
Present — Williams, P.J., Goldman, Halpern, McClusky and Henry, JJ.
Judgment and order unanimously affirmed, with costs. Memorandum: During the trial one Dittmar, in answer to a hypothetical question, gave an estimate of the speed of the Lombard car at the time of its impact with the Dobson car. The objection to the question was overruled. This was error. Dittmar is a consulting engineer who said that he had taken a few months' training in the technical and scientific reconstruction of accidents. In coming to a conclusion as to speed he analyzed photographs of the positions of the cars after the accident, examined the damage to the cars applied the science of photogrammetry and, he claimed, other scientific formulae. His qualifications were not such that he should have been permitted to testify as he did. Despite this error, however, the judgment should be affirmed. The pictures showing the damage to the cars and their positions after the accident, as well as the serious injuries inflicted, show clearly that the Lombard car struck the Dobson car with great force and at a high rate of speed. Furthermore, the testimony of Dittmar was not persuasive or convincing and probably did not impress the jury. The record clearly discloses negligence on the part of Lombard without any consideration of Dittmar's testimony. The motion to dismiss the appeal is hereby dismissed as academic.