Estrada Ex Rel. Estrada v. Cuaron ( 1979 )

OPINION

WALTERS, Judge.

Plaintiff appeals an adverse jury verdict and judgment arising out of an automobile-pedestrian accident that occurred August 5, 1976 at approximately 10:20 p. m. near the southeast corner of the intersection of Coors Boulevard and Barcelona Road in Albuquerque, New Mexico. Defendant was driving north on Coors Boulevard. Decedent and his brother were crossing Coors Boulevard afoot from west to east and were about twelve inches from the east curb line when the accident occurred.

The trial court refused to admit evidence of speed of defendant’s vehicle by two witnesses: (1) that of a state police officer who clocked defendant’s speed at 69 miles per hour Vio of a mile south of the point of the accident and (2) a lay witness, 16 years of age, standing 10 feet east of Coors, who observed defendant’s car about 75 yards south of the point of the accident, a split second before defendant’s car struck the boys. Plaintiff correctly contends that exclusion of this evidence was reversible error. Both witnesses should have been permitted to testify.

The eye witness, a 16 year-old boy with two years’ driving experience, accompanied decedent and his brother to the south side of Barcelona at the Coors intersection. He crossed Coors Boulevard first, stood about 10 feet east of Coors and watched the brothers cross. When they arrived at the middle of the two northbound lanes of Coors Boulevard, he saw defendant’s car approaching from the south at about 75 yards. He looked back at the boys, with the approaching car also within his sight, and saw the ear strike them. It took two or three seconds from the time he first saw the car to the time of the accident.

The witness was examined in the absence of the jury. He testified that he drove his own car to work everyday, and was experienced in observing the speed of other cars. He said that defendant’s vehicle was going at a high rate of speed, probably 65 or 70 miles an hour. The court held that the witness was not competent to evaluate the speed.

A sufficient foundation had been laid for the witness’s testimony. State v. Richerson, 87 N.M. 437, 442, 535 P.2d 644 (Ct.App.1975); Pavlos v. Albuquerque Nat’l Bank, 82 N.M. 759, 487 P.2d 187 (Ct.App.1971), and cases and authorities collected in Pavlos. Personal observation is the key factor in allowing lay opinion evidence. Pavlos, supra, at 761, 487 P.2d 187. This witness was clearly competent to observe defendant’s vehicle and to estimate its speed. The value of his opinion was for the jury to assess.

Plaintiff tendered the testimony of the state police officer who related that he clocked defendant driving at 69 m.p.h. seven-tenths of a mile from the accident. He pulled off to the side for fifteen seconds “at the most” to allow two cars to pass so he could make a u-turn and pursue defendant, having defendant’s taillights in view at all times. He saw defendant brake “for an instant” at the intersection of Rio Bravo, .2 mile before Barcelona where the accident occurred; the car continued north and the brake lights came on again “for short time, and off,” and then on once again when defendant pulled onto the shoulder north of Barcelona. • The officer told the court that the second time he saw the brake lights flash “must have been at the time of the accident.” He was unable to say how much the car slowed down after the defendant braked “for an instant” before defendant reached the point of the accident and made the second “on and off” application of his brakes. Defendant testified he was driving fifty-five miles per hour before he reached Rio Bravo.

There is no question that the officer’s testimony was relevant as tending to make the existence of defendant’s excessive speed more or less probable than it would be without the evidence. N.M.R.Evid. 401, N.M.S.A.1978. It was not made inadmissible by reason of danger of unfair prejudice, confusion of issues or misleading the jury, undue delay, waste of time, or because it was cumulative evidence. Rule 403. He clocked defendant at 69 m.p.h. a half-mile south of Rio Bravo. Defendant said he “slowed down” to “about fifty miles an hour” between Rio Bravo and Barcelona. Even assuming a 50-mph speed for the entire .7 mile from the radar contact to the point of the accident, the officer’s observation occurred less than a minute before the accident (.7 mile (3696 feet) -5- 70.0 feet/second (at 50 m.p.h.) = 52.8 seconds); thus the evidence of speed was not so remote as to be misleading or confusing, cf., Pavlos v. Albuquerque Nat’l Bank, supra (evidence relating to driving conditions as far as 72 miles from scene of accident). Additionally, it was relevant to the credibility of defendant’s statement that he had not exceeded the speed limit that night. Rule 607.

The purpose of a trial of factual issues is to arrive at the truth, insofar as possible. State ex rel. Hwy. Dept. v. Kistler-Collister Co. Inc., 88 N.M. 221, 539 P.2d 611 (1975). The jury had before it only the testimony of defendant regarding speed, the testimony of both the officer and the eye-witness having been excluded. Thus the defendant’s testimony at trial was uncontradicted. If the excluded evidence had been admitted, the jury was not bound to believe either of the witnesses, nor that the radar-recorded speed continued to the point of accident; but even though the testimony of these witnesses was not conclusive, it was relevant to the issue of defendant’s speed and should have been submitted to the jury. “ ‘It is wise to remember that the trend in American jurisprudence is toward the greater admissibility of evidence. We must not “close any reasonable avenues to the truth in the investigation of question of fact. In doubtful cases the doubt should be resolved in favor of its admissibility.” ’ ” Weiland v. Vigil, 90 N.M. 148, 153, 560 P.2d 939, 944 (Ct.App.1977), Sutin, J., quoting from his dissent in Pavlos v. Albuquerque Nat’l Bank, supra.

The radar evidence corroborated the lay witness’s opinion that defendant was traveling between 65 and 70 m.p.h. at the point of impact. Dawson v. Olson, 97 Idaho 274, 543 P.2d 499 (1975). By the same token, the police officer’s testimony confirmed the testimony of the layman; and the jury should have been allowed to weigh their conflicting evidence with that of defendant’s. Jones v. Anderson, 81 N.M. 423, 467 P.2d 995 (1970).

The trial court was in error in excluding the tendered evidence by plaintiff’s two witnesses.

The case is reversed and remanded for a new trial.

IT IS SO ORDERED.

HERNANDEZ, J., concurs. SUTIN, J., concurs in part and dissents in part.