Shaw v. Sylvester

116 S.E.2d 351 (1960) 253 N.C. 176

A. Turner SHAW, Jr., Administrator of the Estate of Harry K. Musselman, Deceased,
v.
Paul G. SYLVESTER, Administrator of the Estate of Otto W. Becker, Deceased.

No. 173.

Supreme Court of North Carolina.

October 12, 1960.

Charles F. Blanchard, Raleigh, and Robert L. Farmer, for plaintiff, appellant.

Joseph C. Olschner, Jacksonville, for defendant, appellee.

HIGGINS, Justice.

Plaintiff presents three assignments of error: (1) Failure to permit Sgt. Etherage to give his opinion that Becker was thrown from the left door of the Ford; (2) failure to hold Sgt. Etherage qualified as an expert "in the field of highway traffic reconstruction"; (3) failure to permit the plaintiff to go to the jury.

The evidence in the case was ample to show the defendant's intestate was the owner and one of the two occupants of the vehicle at the time of the wreck. It is ample to show that the driver was operating at approximately 80 miles per hour and that driver negligence proximately caused the death of both occupants.

Is there sufficient evidence to show defendant's intestate was the driver? This Court held in Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258, that ownership alone is not sufficient to permit a reasonable inference the owner, though in the vehicle, was the driver at the time of the wreck.

Plaintiff sought to qualify Sgt. Etherage as an expert in the reconstruction of automobile accidents and have him testify in answer to a hypothetical question that in his opinion Becker was thrown from the left door of the car and was, therefore, the driver. The facts upon the basis of which he formed the opinion were: The Ford coupe in which Becker and Musselman were riding left the hard surface of the road going south at a speed of 80 miles per hour. Tire marks and furrows plowed in the shoulders, increasing in width and depth, extended for 187 feet. At that point there was a break (indicating the vehicle left the ground) for 37 feet, at which point there were additional marks, and further on another break of 55 feet (indicating the vehicle again left the ground.) A considerable distance beyond, the vehicle came to rest in the creek. The left door was gone. The right door was open and folded back into the fender. Both sides of the vehicle and the top were crumpled. The body of Becker was approximately 50 or 60 feet from the Ford. It was a little south of where the car stopped. This means the body was beyond the point where the vehicle came to rest.

The evidence permits the inference the vehicle, traveling at great speed, catapulted through the air twice, once for 37 feet and once for 55 feet, before it came to rest in the creek. Whether the movement in the air was end over end or otherwise is left to conjecture. From the position of the bodies it may be inferred that Becker was first thrown from the vehicle, but through which door is pure guesswork. The driver may or may not have been thrown from the vehicle before the passenger. That, too, is guesswork.

The known facts in this case leave too many unknowns and imponderables to permit anyone to say with any degree of certainty who was the driver. This case furnishes a good illustration why "courts look with disfavor upon attempts to reconstruct traffic accidents by means of expert testimony, owing to the impossibility of establishing with certainty the many factors that must be taken into consideration." Conway v. Hudspeth, 229 Ark. 755, 318 S.W.2d 137, 140. See also Moniz v. Bettencourt, 24 Cal. App. 2d 718, 76 P.2d 535.

As a general rule, a witness must confine his evidence to the facts. In certain cases, however, an observer may testify as to the results of his observations and give a shorthand statement in the form of an opinion as to what he saw. For example, he may observe the movement of an automobile and give an opinion as to its speed in terms of miles per hour. However, one who does not see a vehicle in motion is not permitted to give an opinion as to its speed. A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require. Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828.

The qualified expert, the nonobserver, may give an opinion in answer to a proper hypothetical question in matters involving science, art, skill and the like. The plaintiff contends Sgt. Etherage placed himself in this expert category by having investigated more than 400 wrecks. There is no evidence that wrecks follow any set or fixed pattern. An automobile, like any other moving object, follows the laws of physics; but which door came open first during the movement would depend upon the amount and direction of the physical forces applied, and the place of their application. There was no evidence the witness ever investigated an accident when both doors were open and both occupants thrown out. In this case neither the nonobserver nor the jury could tell who was the driver. Tyndall v. Harvey C. Hines Co., supra; Everart v. Fischer, 75 Or. 316, 147 P. 189; Burwell v. Sneed, 104 N.C. 118, 10 S.E. 152.

The ruling of the trial court that Sgt. Etherage was not qualified to testify that Becker was thrown through the left door and, therefore, was the driver is in accordance with our decisions. The evidence at the trial was insufficient to raise a jury question. The judgment of nonsuit is

Affirmed.