Hooten v. Dunbar

347 S.W.2d 775, 1961 Tex. App. LEXIS 2427
CourtCourt of Appeals of Texas
DecidedMay 25, 1961
Docket6404
StatusPublished
Cited by16 cases

This text of 347 S.W.2d 775 (Hooten v. Dunbar) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hooten v. Dunbar, 347 S.W.2d 775, 1961 Tex. App. LEXIS 2427 (Tex. Ct. App. 1961).

Opinion

McNEILL, Justice.

Appellee James Dunbar sued appellants Charlie Hooten and Charlotte Ann Daniel in the District Court of Montgomery County on account of injuries sustained by him resulting from a collision between a Chevrolet car appellee was driving and a Ford car owned by appellant Hooten and driven by the other appellant, which took place on State Highway 75 between the towns of Conroe and Willis. Appellee’s petition alleged, among other grounds of negligence, that appellee was proceeding in his right lane south on the highway at the time and the driver of the other car, proceeding north, came across the center line of the road and into appellee’s lane so that the left front of the Ford car struck the left side of his car, causing his Chevrolet to sustain a sideswiping blow to its left side from front to back. Appellants filed answer *776 and cross action, asserting that the Ford car was being operated at the time south-wardly on the highway in its proper lane and that the Chevrolet driven by appellee was proceeding northward and swung across the center line, striking the front end of the Ford bashing it in and causing the Chevrolet to be sideswiped in the manner indicated.

Several eyewitnesses on each side testified sustaining or tending to sustain the party whose witness they were. In rebuttal ap-pellee, as plaintiff below, placed Dr. W. H. Tonn, an expert on analysis of collisions, fires and explosions, on the stand to testify as to the directions in which the two cars were traveling just before the accident involved. The record reflects that he is a recognized expert in the field involved. Upon trial to a jury, it found that appellant Charlotte Ann Daniel was just before the collision traveling north on said highway, crossed the center of the highway into the west lane of the highway and into the path of appellee’s automobile; that this was negligence and a proximate cause of the collision. Upon this verdict judgment was rendered for appellee against appellants for the damages sustained by him, and this appeal has resulted.

Appellants’ sole point is that the trial court erred in permitting appellee’s witness Dr. Tonn to express his opinion as to the directions in which the two cars were traveling immediately before the collision. In the preliminary questioning by appellee’s attorney, Tonn testified that the basis of making a collision analysis is applying the basic sciences of physics, mathematics, chemistry, civil engineering and other related sciences as they may apply to a given set of circumstances; that while he had not made an examination of the area in which the Chevrolet and Ford collided, he was acquainted with the section of the road, and he had been submitted for examination a series of pictures in evidence by appellee showing the position of the cars after they came to rest from the collision and showing the amount and type of damage to each car involved. After being further told that one of the cars was going south and the other north on the highway, and that the one going north came across the center line and collided with the other car he was told to assume that the vehicles came together at approximately this (indicating) angle. The diagram he was testifying from is not in evidence and we do not know the angle involved. After this predicate of facts was given to Dr. Tonn, counsel for appellee then asked him this question which he answered as follows:

“Q. Now, Doctor, from those facts that I have told you, assuming that they are correct, from the position of those cars after the accident, from the damage to the cars as shown by those pictures there, I want to ask you whether or not in your field of engineering you can give me an opinion as to which of these cars was going north before the accident and which was going south. Can you give me an opinion on that? A. Yes, sir.”

Appellants at this point made the following obj ection:

“Mr. Dyess: Your Honor, I object to any question calling for an expression of an opinion as being an invasion of the province of the jury. This is not a case where we don’t have an eye witness, and this is clearly a case where expert testimony could not be admitted to contradict or explain away what eye witnesses themselves say. We don’t have a case here where every body was killed and nobody saw it. We have a case here where eye witnesses came in and testified, and we object to it as being an invasion of the province of the Jury. The direction they were traveling beforehand is a big question in this lawsuit. I don’t believe an expert should be permitted to testify on such a matter when we have eye witnesses who have come here and testified.”

*777 The court overruled this objection and thereupon appellee’s attorney asked the witness:

“Q. (Mr. Harrell, continuing) : Well, let’s go into this a bit. What principles of engineering do you apply in arriving at a conclusion, an opinion? A. It is simply analyzing the direction in which the force had to be applied from each vehicle for the damage suffered as shown in the photographs. It is a question of the direction of the force applied and the damage suffered by the cars.”

The Doctor was asked what sort of damage each photograph revealed the different vehicles sustained. He stated that the damage to the Chevrolet was from a blow applied to the side and not to the front. He was shown pictures of the Ford and he testified the left front end of the Ford was bashed in, indicating a head-on impact, while the damage to the Chevrolet was sideswiping. He was then asked the question which received the answer following:

“Q. All right, sir: Doctor, I want to ask you this: Assuming that these vehicles — that (indicating) is facing south. This (indicating) is coming north. Assuming this Chevrolet was going north and cut across into that south-bound traffic lane at this (indicating) angle, and the vehicles went like this (indicating), or whether it was like (indicating) this or back further, could that collision have occurred with the Chevrolet coming over there at that angle without there being a contact brought to some front part of that Chevrolet ? A. It is physically impossible.”

Then ensued the further question and answer:

“Q. Let’s put them back like this (demonstrating). Assuming again that the Chevrolet was going north at about that angle (indicating) and the Ford was going south at that (indicating) angle, as drawn on that diagram— we’re using Plaintiff’s Exhibit No. 26 which was introduced into evidence at the time Mr. Woodward was testifying. Assuming that the Chevrolet was traveling north and the Ford was traveling south and they came together in approximately that (indicating) position and at that angle, can you tell the Jury how they could come together with that Chevrolet coming across on that Ford and that Ford suffer damage to the front and not to the side there (indicating) ? A. It is impossible, sir.”

There was no separate or additional objection to either of these last two questions nor in fact to any other question asked by appellee, although examination of the witness calling for his opinions continued, and then considerable cross-examination of the witness took place. But at the end of the cross-examination, counsel for appellants moved that the testimony of Dr. Tonn be excluded from the record “for the reasons heretofore given,” which was denied.

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Bluebook (online)
347 S.W.2d 775, 1961 Tex. App. LEXIS 2427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hooten-v-dunbar-texapp-1961.