Opinion
Dec. 3, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 321
Friedman, Bader & Dufty, Charles A. Friedman, Denver, for plaintiffs-appellants.
Dosh, DeMoulin, Anderson & Campbell, Robert C. Miller, Denver, for defendants-appellees.
RULAND, Judge.
Plaintiffs, as surviving widow and daughter, joined in this action to recover for the alleged wrongful death of Earl Sullivan. The deceased was killed in Kansas as the result of a two-vehicle collision between a station wagon the decedent was driving and a tractor-trailer truck leased by defendant Jim Tiona, Jr., and driven by defendant Donald Beers.
The case was tried to a jury, which found for defendants. Plaintiffs appeal from the denial of their motions for a directed verdict on the issue of liability and for judgment notwithstanding the verdict asserting that the trial court erred in admitting defendants' expert testimony and the testimony of an eyewitness. Plaintiffs also assign as error the trial court's ruling which permitted defense counsel to make an opening statement as the beginning of defendants' case-in-chief and the contents of two jury instructions given by the court.
Defendants cross-appealed contending that the trial court erred in its rulings that the dead man's statute, C.R.S.1963, 154--1--2, precluded Beers from testifying and that the Kansas Wrongful Death Act Applied to this action. Since we affirm the judgment, we do not reach the issues raised on cross-appeal.
The record reflects that the collision occurred approximately six miles north and one mile west of Sublette, Kansas, on U.S. Highway 83 near an intersection between U.S. Highways 83 and 160 to the west and Kansas 144 to the east. Both drivers were alone in their vehicles.
The two major contentions at issue between plaintiffs' and defendants' theory of how the collision occurred are the initial point of impact of the vehicles and the position of the vehicles at point of initial impact. Plaintiffs theorized that the Sullivan car was driving north on U.S. 83, that the Beers truck driving south was braking and thus skidded into Sullivan's lane, striking the station wagon. Plaintiffs rely on the presumptions that the deceased was using due care and that Beers, by being on the wrong side of the road, was negligent. Defendants theorized that Sullivan stopped on a turning lane or shoulder on the west side of U.S. 83 headed south, that he pulled out into Beers' path as Beers proceeded south, and that Beers veered to the left to avoid him and collided with the left front of the station wagon as the latter attempted a U-turn in front of the truck.
U.S. 83 is a two-lane north-south highway, with a 12-foot lane for each direction of travel. Turning lanes are provided at the intersection of U.S. 83 and U.S. 160, and U.S. 83 is straight and level with visibility generally unobstructed.
On the issue of liability, plaintiffs relied exclusively on the deposition testimony, diagrams, and photographs of the Kansas Highway Patrol trooper who investigated the collision. He arrived at the scene of the accident approximately 40 minutes after its occurrence. His investigation included measurements of the width of U.S. 83 and the length of skid and scuff marks left by the truck from the southern edge of the intersection of U.S. 160 and U.S. 83 to the final resting place of the truck in a field. His measurements also showed the final resting place of the station wagon.
Scale diagrams reconstructing the trooper's investigation and photographs taken approximately 40 minutes after his arrival were introduced into evidence. Photographs showed the location of and damage to both vehicles and skid and scuff marks of the truck.
The trooper testified that there was a deviation in skid marks left by the truck on U.S. 83 at a point 71 feet south of the southern edge of U.S. 160 and four feet eight inches east of the centerline of U.S. 83. On the basis of this deviation, the trooper determined that initial impact of the two vehicles was at this point. He further testified that in his opinion the station wagon was straightaway northbound prior to the collision. However, on cross-examination he indicated that the damage to the two vehicles might be consistent with the Sullivan car being at a 'slight angle' from southwest to northeast.
The trooper also testified that on initial impact, the right front of the truck and the left front of the Sullivan vehicle came into contact. The Sullivan car spun back after the initial impact and there was a second impact, damaging the rear of the Sullivan vehicle and the dolly of the truck and the side of the trailer.
I. Expert Testimony
Defendants called two accident reconstruction experts to testify relative to position of the vehicles at point of impact. Both were recognized by the court as qualified experts for this purpose. Based upon the trooper's photographs, diagrams, and testimony, the experts placed Sullivan's car at an angle of 30 to 90 degrees to the truck on impact, thus supporting defendants' theory relative to the collision.
Relying primarily on the decision of our Supreme Court in Brayman v. National State Bank, Colo., 505 P.2d 11, plaintiffs contend that such expert testimony, based solely on the trooper's photographs, diagrams, and testimony should not have been admitted. We disagree.
Brayman involved a one-car accident in which the major issue was who was driving the vehicle at the time of the accident. An accident reconstruction expert opined that Brayman was in the car and was the driver. The Court held that no competent evidence had been introduced by the investigating officer on the basis of which the expert could reach that opinion. However, Brayman does not exclude all expert testimony based solely on an officer's testimony, diagrams, and photographs, and that decision does not overrule the earlier case of Dolan v. Mitchell, Colo., 502 P.2d 72. There the Court held that expert testimony 'based on the testimony of witnesses to the accident, physical facts admitted into evidence, and numerous photographs of the accident scene and the vehicles after impact' is admissible.
In the instant case, defense counsel's hypothetical question to the experts was based on physical facts introduced into evidence by the investigating trooper in his testimony, exhibits, and photographs. The opinions were limited to the position of the vehicles at the time of initial impact and were based primarily on photographs showing damage to the two vehicles which were introduced without objection. Hence, the evidence was properly admitted. Dolan v. Mitchell, Supra.
Plaintiffs' further objection based on McNelley v. Smith, 149 Colo. 177, 368 P.2d 555, that both experts' testimony is inadmissible because of their heavy reliance on photographs, is without merit. The expert opinion in McNelley was excluded primarily because the subject matter was such that the jurors were capable of making correct inferences, and such is not the case here.
II. Testimony Contrary to Physical Facts
Plaintiffs assert that the testimony of Pattree Love, a witness for defendants who testified as an eyewitness to the collision, should have been excluded by the trial court on grounds that it was inherently impossible and contrary to physical facts. We disagree.
Love was not acquainted with either party. He stated that he had been following the Beers truck for about three miles and that he was about three car lengths behind it as they approached the intersection of U.S. 160. Although his testimony was somewhat contradictory as to when he first saw the Sullivan car, he testified that it pulled out from U.S. 160 when the truck was only 15 to 20 feet away and turned in front of the truck to go north. According to Love, Beers' truck then pulled to the left and struck the station wagon as the latter was turning.
Love placed the collision on the centerline of both highways, approximately 95 feet north of where the trooper located it. This testimony was in conflict with a prior written statement signed by Love which placed the point of impact at another location within the intersection. Love also testified as to the points of collision on both vehicles at initial and second impact, damage to the vehicles, and their resting places after the collision.
Plaintiffs' contention is based on two grounds: (1) The conflict between Love's testimony and the testimony of the investigating trooper as to the point of impact; and (2) inconsistencies in Love's testimony on other subjects. As to the latter grounds, we note that the contradictions in Love's testimony go only to his credibility. Bein Farms, Inc. v. Dale, 137 Colo. 424, 326 P.2d 72. The issue remaining is whether Love's testimony should have been excluded by the rule that sworn testimony may not be admitted which is contrary to established and 'undisputed physical facts.' See, e.g., Winterberg v. Thomas, 126 Colo. 60, 246 P.2d 1058. That rule is not applicable to the facts before us.
Although the deviation in skid marks relied upon by the trooper was a strong indication that the collision occurred at the point of deviation, we know of no physical law which establishes such a conclusion as irrefutable. See Romann v. Bender, 190 Minn. 419, 252 N.W. 80. Accordingly, we view the holding in Denver Tramway Corp. v. Perisho, 105 Colo. 280, 97 P.2d 422, applicable here:
'(B)y this formula (physical facts rule) we are urged judicially to nullify the testimony of disinterested eye-witnesses. Properly, we may not do this. 'So frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except where they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other.' 20 Am.Jur., p. 1034, s 1183.'
Accord, Swanson v. Martin, 120 Colo. 361, 209 P.2d 917.
In addition, assuming Love's testimony was incorrect both as to the point of impact and the assertion that Sullivan pulled into the intersection from U.S. 160, this would relate only to the location of the vehicles prior to impact but not the angle of the collision. Love's testimony on this subject buttresses the opinion of the experts.
Thus assuming, arguendo, that the 'physical facts' rule required us to hold that Love's testimony had no probative value as to the point of impact and where the station wagon entered the highway, this does not require the trial court to strike Love's testimony in its entirety. See C. McCormick, Evidence s 52 (2d ed.). We find no authority for prohibiting the submission of the remainder of his testimony to the jury. Further, the record does not show that plaintiffs were prejudiced by that part of his testimony relating to point of impact. They had ample opportunity to challenge his credibility on cross-examination and to comment upon it in closing argument. The jury was properly instructed as to the credibility of witnesses and weight to be given to the evidence. It further appears that the crucial issue for the determination of liability was the position of the vehicles at the point of impact rather than the precise location of the point of impact. Hence, we find no error in the trial court's ruling.
In view of our decision on the admissibility of the testimony of defendants' witnesses, the trial court properly denied plaintiffs' motion for directed verdict and judgment notwithstanding the verdict. Where the evidence is in conflict and is such that reasonable persons might not agree or might draw different inferences, it is for the jury to make a determination of the facts. Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862.
III. Defendants' Opening Statement
Plaintiffs' contention that the trial court erred in allowing defendants to make an opening statement at the beginning of their case-in-chief is without merit. The trial court is vested with discretion to determine whether defendants' opening statement should be made after presentation of plaintiffs' evidence or after plaintiffs' opening statement. Sands v. Potter, 165 Ill. 397, 46 N.E. 282. We find no abuse of discretion here.
IV. Jury Instructions
Plaintiffs assert that the trial court erred in giving instructions relative to 'sudden emergency,' as defined by Kansas law, and a driver's duty to keep a lookout to the rear, on the basis there was no evidence to support such instructions. Both of the challenged instructions support defendants' theory of their case, and there is evidence or inferences from evidence in the record to support them. Defendants, therefore, were entitled to these instructions. Maloney v. Jussel, Supra.
Judgment affirmed.
PIERCE and VAN CISE, JJ., concur.