Day v. Lorenzo Smith & Son, Inc.

408 P.2d 186, 17 Utah 2d 221, 1965 Utah LEXIS 490
CourtUtah Supreme Court
DecidedNovember 26, 1965
Docket10256
StatusPublished
Cited by11 cases

This text of 408 P.2d 186 (Day v. Lorenzo Smith & Son, Inc.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day v. Lorenzo Smith & Son, Inc., 408 P.2d 186, 17 Utah 2d 221, 1965 Utah LEXIS 490 (Utah 1965).

Opinions

CALLISTER, Justice.

A personal injury action arising out of a collision between two motor vehicles. The lower court, based upon, the jury’s answers to special interrogatories, entered a judgment of no cause of action. Plaintiff appeals and. presents this court with only one question: Did the lower court commit prejudicial error in permitting a highway patrolman to give his opinion as to the point of impact?

. ' The accident occurred on a straight stretch of U. S. Highway 91, about four miles north of Nephi, Utah. Plaintiff was a passenger in a pick-up truck being driven in a-northerly direction on the east side of [223]*223the highway by one Roberts. It sideswiped with a small truck belonging to defendant and operated by its employee. Defendant’s truck was travelling in a southerly direction on the west side of the highway. The highway at this point is two lane, the lanes being separated by a white strip of paint.

The crucial factual question was which vehicle was in the wrong lane. Four disinterested eye witnesses testified at the trial. Two placed the defendant’s truck in the wrong (east) lane and two placed the Roberts’ vehicle in the wrong (west) lane at time of impact.

Eldon Sherwood, a Utah highway patrolman with 24 years experience of accident investigation, was at the scene investigating another accident, when the instant collision occurred. However, his back was to the highway and he did not see the actual impact. He heard the noise and turned around in time to see the Roberts vehicle careen down the highway and roll over.

Although there is authority to the contrary, we believe the proper rule to be that a trial judge, in his discretion, may permit a qualified expert (in this case an experienced highway patrolman) to give his opinion as to the point of collision when a proper foundation for the opinion has been laid. This is subject to a caveat, however: The opinion should not be admitted if it is based upon the same evidence as is availa-' bíe to the jury, and a layman of ordinary intelligence can equally determine what happened.1

Plaintiff’s argument, that Sherwood’s opinion was upon the very issue to be decided by the jury, and thus an invasion of its province, is without merit. In Joseph v. W. H. Groves Latter-Day Saints Hospital,2 Mr. Justice Crockett, speaking for a majority of this court, stated:

“ * * * This obj ection is untenable. Whether the testimony of an expert is as to ‘the very issue before the jury’ is not a proper test as to its admissibility. Where the subject of inquiry is in a field beyond the knowledge generally possessed by laymen, one properly qualified therein may be permitted to testify to his opinion as an expert. If the opinion evidence is such that it will aid the jury in understanding their problems and lead them to the truth as to disputed issues of fact, it is competent and admissable, irrespective of whether it bears directly upon the ultimate fact the jury is to determine.3 And the trial judge is allowed a wide discretion in regard to the allowance of such testimony.”

Thus, the opinion testimony of patrolman Sherwood was properly admitted if it [224]*224aided the jury in determining a factual issue which they, as laymen, could not ordinarily resolve. However, this brings us to the crux of the case. Without a proper foundation having been laid, it is impossible for this court to decide whether or not Sherwood’s testimony was properly admis-sable. In this respect, plaintiff’s contention is well-founded.

. Sherwood’s qualification as an expert in accident investigations is not challenged. However, the record does not disclose a proper foundation to support his opinion testimony as to the point of impact. He did not see the actual-impact, therefore his opinion had to be based upon facts derived from his investigation.4

Sherwood was called as a witness for the plaintiff and, upon direct examination, testified as follows:

Q. (Mr. Beesley) I see. Now, were there any objective signs whatsoever to determine the point of collision?
A. No.
Mr. Nebeker: I will object to that your Honor. I think he can state what he saw and let the jury decide.
The Court: Well, since he says no, I guess we don’t have to pursue it further.

Upon cross-examination, Sherwood was not permitted to give his “opinion” as to the point of impact, but, over objection, was allowed to state his “judgment” thereof.5 He placed the point of collision one or two feet to the west of the centerline of the highway.

As previously stated, Sherwood did not see the actual collision, but did observe the movements of the Roberts’ vehicle immediately afterwards. Upon direct examination, he testified to the skid marks laid down by the Roberts truck and drew them on the blackboard. Upon cross-examination, Sherwood testified as follows with relation to the point of collision:

Q. (Mr. Nebeker) I see. Now you did examine the roadway where these two vehicles had collided, did you not ?
A. Yes.
Q. And you found that there was considerable debris on the road there, did you not ?
[225]*225A. Well, I wouldn’t know about the considerable amount, but there was debris.6
Q. From your examination of the road, you made a determination as to the approximate point of impact, did you not ?
A. Yes.
Q. Was that point of impact on the east or the west side of the road ?
A. It was near the centerline, and my best opinion, it may have been * * *
Mr. Beesley: I will object to any opinion, your Honor.
The Court: Well, you may give your judgment. If you are giving us an opinion, he would be right. If you mean by your opinion your best judgment as to what you judge it would be, I think you might proceed, Sergeant, and I don’t quite know—
Q. Give us your judgment.
Mr. Beesley: Make the same objection, your Honor.
The Court: Let’s find out if he has a judgment or giving an opinion. If he is giving an opinion, he can’t.
Q. Do you have a judgment as to where the point of impact occurred?
A. Yes.
Q. Will you tell’us what that judgment is?
Mr. Beesley: Objection, your Honor. The Court: It’s overruled. He may give his judgment.
A. As near the centerline and probably a little bit west..
Mr. Beesley: I object to any probability, your Honor.
The Court: If you are confining it to your judgment—
Q. Just give us your best judgment. The Court: You can tell us your judgment.
Mr. Beesley: I believe he said the cen-terline.
A. Near the centerline.

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Day v. Lorenzo Smith & Son, Inc.
408 P.2d 186 (Utah Supreme Court, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
408 P.2d 186, 17 Utah 2d 221, 1965 Utah LEXIS 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-lorenzo-smith-son-inc-utah-1965.