Opinion
Dec. 31, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Margaret Bates Ellison, Thomas J. deMarino, Denver, for plaintiff-appellee.
Williams, Erickson & Wallace, P.C., R. Neil Quigley, Denver, for defendant-appellant.
VanCISE, Judge.
Defendant William J. Mahon appeals from a judgment entered on a jury verdict awarding plaintiff Robert J. Marshall damages for personal injuries and property damage suffered in an automobile accident. We affirm.
Shortly before 7:00 A.M. on April 26, 1972, Mahon's vehicle struck the rear of the Marshall Volkswagen camper while it was stopped in a snowstorm in a line of traffic on Cherry Creek Dam Road. The evidence was in conflict as to the amount of snow which had accumulated, the condition of the road surface, and the degree of visibility at the time of the accident. At the conclusion of the evidence, the court directed a verdict for plaintiff on liability and submitted to the jury the questions of damages for plaintiff's personal injury and injury to the vehicle. The jury awarded Marshall $11,500.
Mahon does not appeal from the directed verdict on liability. However, he contends that the court erred (1) in allowing the issue of damages to the vehicle to go to the jury, and (2) in permitting plaintiff's expert witness to testify on defendant's speed at the time of braking, and asserts that these alleged errors prejudicial the defendant in the amount of damages awarded.
I.
After both parties had rested their cases, defendant tendered an instruction barring the jury from considering damages to the vehicle inasmuch as Mrs. Marshall, a co-owner thereof, was not a party to the suit. The reason assigned in the proposed instruction was that 'the defendant could be subjected to multiple claims by the various co-owners unless they are all bound by the judgment.' At this point, the court allowed plaintiff to reopen his case. Mrs. Marshall identified the title certificate showing an assignment that day of her interest in the vehicle to her husband. She stated that she understood that by this assignment she had assigned her claim for any damage thereto. Over objection, the assigned vehicle title was admitted into evidence. Appellant contends that the court suggested this action, out of the presence of the jury, and that both the suggestion and allowing plaintiff to reopen the case were prejudicial error. Inasmuch as there is nothing in the record showing any suggestion by the court as to what plaintiff should do, that matter is not before this court for review.
The complaint stated a claim for damage to the vehicle. No defense of misjoinder or lack of full ownership in the plaintiff was raised by answer or motion or in the pretrial order approved by defendant's attorney. Without objection, plaintiff produced extensive testimony concerning damage to the vehicle and to the loss in value thereof caused by the accident. Reopening of the case for the taking of the additional testimony was discretionary with the trial court.
"It is always within the discretion of the trial court to permit the reopening of a case for the purpose of allowing additional evidence, and it is the duty of the trial court to thus reopen a case whenever the ends of justice can be advanced thereby." Green v. Pullen, 115 Colo. 344, 173 P.2d 458; quoting Plummer v. Struby-Estabrooke Mercantile Co., 23 Colo. 190, 47 P. 294.
Here, reopening the case facilitated the determination of the action on the merits. Defendant declined the opportunity to cross-examine Mrs. Marshall on her additional testimony. He was not prejudiced in maintaining his defense on the merits. There was no abuse of discretion.
II.
Plaintiff offered the testimony of an expert witness, a Colorado Highway Patrolman, to testify to defendant's speed at the time he applied his brakes. His testimony was elicited by the use of a hypothetical question. Defendant contends that there was insufficient evidence (1) to support an assumption in the question that the brakes were first applied 100 feet from the point of impact, or (2) to support assumptions allegedly made by the witness in answering the question that (a) the drag factor (the friction between a vehicle and the road surface) was 40/100, typical for a snowy road, and (b) that the vehicle was equipped with the Bendix braking system that doesn't permit the locking of the wheels. The expert gave his opinion that the vehicle was traveling 35 miles per hour when the brakes were first applied, basing this on a formula involving only the drag factor and the length of the skid marks.
Hypothetical questions to expert witnesses may be based on assumptions of what the evidence tends to prove where the assumptions 'have a reasonable basis in the evidence.' Riss & Co. v. Galloway, 108 Colo. 93, 114 P.2d 550; Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284. Defendant's testimony on cross-examination supports the wet heavy snow conditions on which the drag factor was premised, and was sufficient to support a reasonable inference of skid marks of 100 feet. These two items were the basis for the witness's conclusion. From the patrolman's testimony basing his calculations on 'skid marks,' it is apparent that he assumed the wheels on defendant's car were locked while he was braking. His subsequent testimony that defendant's vehicle had a Bendix braking system was immaterial, since that assumption was not a factor in arriving at the opinion on speed at the time of first braking.
The weight, if any, to be given to the expert's opinion was for the jury to determine. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72; Yeager Garden Acres, Inc. v. Summit Construction Co., 32 Colo.App. 242, 513 P.2d 458. The jury was properly instructed on this point in accordance with Colorado Jury Instructions 3:14. There was no error in admitting the testimony.
Judgment affirmed.
ENOCH and BERMAN, JJ., concur.