Johnson v. Attkisson

722 S.W.2d 390, 1986 Tenn. App. LEXIS 3272
CourtCourt of Appeals of Tennessee
DecidedSeptember 12, 1986
StatusPublished
Cited by8 cases

This text of 722 S.W.2d 390 (Johnson v. Attkisson) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Attkisson, 722 S.W.2d 390, 1986 Tenn. App. LEXIS 3272 (Tenn. Ct. App. 1986).

Opinion

OPINION

CANTRELL, Judge.

In an action for wrongful death, personal injuries, and property damage, the plaintiffs below appeal from a judgment entered on a jury verdict dismissing their action. The issues on appeal concern the testimony of an investigating officer as an expert witness and the trial judge’s charge on the imputation of the contributory negligence of the driver to the passenger and the owner of the car.

On October 16, 1983, at approximately 10:00 in the evening, Walter Lee Johnson drove his father-in-law’s Chevrolet automobile in a westerly direction on State Highway 99 toward an intersection with U.S. Highway 31 in Columbia. Walter Lee Johnson’s wife, Barbara Johnson, was a passenger in the automobile.

At the same time the defendant below, Johnny R. Attkisson, drove his International tractor trailer unit in a northerly direction on U.S. Highway 31 just south of the intersection with State Highway 99. Traffic at the intersection is controlled by electrical traffic lights.

As Mr. Johnson drove into the intersection the truck driven by Mr. Attkisson struck the Chevrolet automobile full on the driver’s side. The force of the collision demolished the automobile. Mr. Johnson was thrown from the automobile under the wheels of the trailer as the trailer “jackknifed” and swung in a 180 degree arc, coming to rest with the front of the trailer pointing back toward Columbia. Mr. Johnson was killed instantly. Mrs. Johnson sustained severe personal injuries.

Mrs. Johnson sued Mr. Attkisson for Mr. Johnson’s wrongful death and for her own personal injuries. Her father, Mr. Holt, joined in the action to collect for the damages to his automobile. The jury returned a verdict for the defendant and the trial judge entered an order dismissing the action.

The appellants assert that the trial judge erred in allowing an investigating officer to give his expert opinion about the speed of the truck just prior to the accident. The record shows that Sgt. Joe Smith of the Columbia Police Department was called to the scene of the accident at approximately 1:30 on the morning following the accident. The vehicles and the body of Mr. Johnson had been removed from the scene. Sgt. Smith measured skid marks, gathered what data he could, and analyzed that data to satisfy himself how the accident happened. Over the objection of the plaintiffs, he was allowed to give his opinion that the truck driven by Mr. Attkisson was traveling between forty-five and forty-seven miles per hour just prior to entering the intersection.

The plaintiffs’ objection to Sgt. Smith’s testimony is two-fold. First, they assert that the proper qualifications to give expert testimony were not established. In the second place, they assert that the facts on which he based his opinion are not stated or otherwise found in the record.

[392]*392Sgt. Smith testified that he was a supervisor in the Patrol Division of the Columbia Police Department. He related his training and experience in the following testimony:

“Q. All right. If you would, tell us your experience, your training, your schooling, your history of testimony in other cases that would qualify you as an expert in this area of accident reconstruction.
A. I received report writing at the Police Academy in Donelson, Tennessee in 1977. I attended a rather extensive training course through Northwestern University in on-the-scene accident investigation.
Q. Is that Northwestern University in Chicago, Illinois?
A. Yes, sir. It was an off-campus course.
Q. About how many hours did you receive there?
A. It was 80 hours in the on-scene investigation.
Q. All right, sir. What else?
A. After that, I attended the technical reconstruction school which is 120 hours. Q. Is that also at Northwestern University in Chicago, Illinois?
A. Yes, sir, off-campus course.
Q. Go ahead please, sir.
A. I’ve gained experience through working numerous accidents in the city of Columbia while I’ve been employed with the Police Department. I received certification from Northwestern as an expert in technical accident reconstruction.
Q. Have you testified as an expert in accident reconstruction previously?
A. Yes, sir.
Q. Have you had occasion to examine many or few automobile accidents and reconstruct the result thereof?
A. Yes, sir. It would be numerous.”

We are of the opinion that Sgt. Smith did not show the required experience or expertise necessary to give an expert opinion on the speed of the truck involved in this accident. While the competency of an expert witness is largely within the discretion of the trial judge, the power of the trial judge is not absolute. Walters v. Glidwell, 572 S.W.2d 657 (Tenn.App.1978). There must be some showing that the witness has some special as well as practical knowledge of the subject he is testifying about. Fortune v. State, 197 Tenn. 691, 277 S.W.2d 381 (1955). Other courts have said that the witness should have some special as well as practical acquaintance with the immediate line of inquiry. Phillips v. Tidwell, 26 Tenn.App. 543, 174 S.W.2d 472 (1943).

The record before us does not show that Sgt. Smith had any special training in estimating speed from skid marks. Nor does the record show any practical experience in that area. He had been trained and had received certification in the field of accident reconstruction, but we are forced to guess whether that training imparted any skills in the technique of estimating the speed of a vehicle based on the skid marks left on the pavement at the accident scene.

We are also of the opinion that the objection to Sgt. Smith’s testimony should have been sustained on the other ground asserted by the appellants. For an expert to give an opinion on direct examination based on his own knowledge, he must, as a general rule, first testify to those facts upon which his opinion is based. Parker v. Prince, 656 S.W.2d 391 (Tenn.App.1983). Some of the facts necessary to estimate the speed of a vehicle based on the length of skid marks left at the scene of the accident are set out in Walters v. Glidwell, 572 S.W.2d 657 (Tenn.App.1978). They are: weight of the vehicle, tire type or air pressure, and type and condition of the road surface. We think it is also necessary to know in the instant case how the trailer was loaded and whether all of the brakes on the truck and the trailer were working properly. There may be other factors that are equally important.

It may be true that Sgt. Smith had acquired all these facts; but if he did, he did not state them for the record and he was not asked to assume them in a hypothetical [393]*393question.

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Cite This Page — Counsel Stack

Bluebook (online)
722 S.W.2d 390, 1986 Tenn. App. LEXIS 3272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-attkisson-tennctapp-1986.