Moore v. Wheeler

425 S.W.2d 541, 1968 Ky. LEXIS 417
CourtCourt of Appeals of Kentucky
DecidedMarch 1, 1968
StatusPublished
Cited by3 cases

This text of 425 S.W.2d 541 (Moore v. Wheeler) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Wheeler, 425 S.W.2d 541, 1968 Ky. LEXIS 417 (Ky. Ct. App. 1968).

Opinion

MILLIKEN, Judge.

On March 12, 1965, shortly after 1:00 p. m., E.S.T., three sisters, Beulah Moore, Mabel Wheeler and Jewell Yates were traveling north in Beulah Moore’s car on U.S. Highway 23 in Boyd County, Kentucky. U.S. 23 is a twenty-four-foot wide, blacktopped, straight highway at the point of the accident and has a ten-foot wide gravel berm on each side of the highway. Appellant Moore was driving, Mabel Wheeler was in the middle of the front seat, and Jewell Yates sat by the front right door of the Moore 1960 Chevrolet station wagon. The weather was clear, the road dry and its surface good. The ladies were heading for Catlettsburg, Kentucky, but at a point approximately ten miles south of that city, on a fairly straight stretch of Highway 23, Beulah Moore, while attempting to pass a [543]*543trailer truck driven by Charles Crockett, lost control of the car which caused it to leave the road, cross a drainage ditch, strike an embankment and turn over twice. The accident killed Jewell Yates, who was thrown out of the car, and badly injured Beulah Moore and Mabel Wheeler.

This litigation followed with: Beulah Moore suing Charles Crockett (the driver of the tractor trailer), F. R. Crockett (the father of Charles Crockett and the owner of the tractor), and Foremost Dairies of the South, Inc. (owner of the trailer) ; Howard Yates, administrator for Jewell Yates, suing Beulah Moore, the Crocketts and Foremost; and Mabel Wheeler suing Beulah Moore, the Crocketts and Foremost. All these actions, being related, were joined for trial. The judge directed a verdict for Foremost Dairies; the jury absolved the Crocketts and found against Beulah Moore in favor of Mabel Wheeler for $10,000.00, and in favor of Howard Yates, administrator, for $3,075.00. Beulah Moore appealed the judgments against her and the administrator of Jewell Yates cross-appealed.

Beulah Moore’s version of the case was that she was forced off the road by the Crockett truck when she attempted to pass it. Her argument in this action was that she should not be held responsible for her acts, even though they might be negligent ones, because they were committed instinctively when she was faced with a “sudden emergency”, created by the actions of the Crockett truck. The authority for this theory is Moreland’s Administrator v. Stone, 292 Ky. 521, 166 S.W.2d 998 (1942).

Unfortunately for appellant Moore, the testimony given during the trial did not bear out her contention that the emergency was not of her making. The testimony of Crockett and Mrs. Wheeler justified an inference that appellant Moore could have averted the crash by dropping back into her lane behind the truck. Trooper James Boyle of the Kentucky State Police testified that Mrs. Moore was undoubtedly going at a high rate of speed when she left the road and Charles Crockett denied, as did his co-driver Childers, that the truck ever swerved into the left hand lane at any time during' the sequence of events leading up to and including the accident. The jury weighed the testimony and the evidence and chose to-believe Charles Crockett.

The appeal of Beulah Moore is based on several grounds. The first of these is that Nora Gee Thompson was a witness that appellant Moore wanted for the trial but could not find. This witness’ purported testimony was summarized in an affidavit and it purportedly implied that the Crockett truck was at fault in the accident. Appellant Moore sought to read the affidavit into the record or have the case continued until Nora Gee Thompson could be found. The court refused both requests and Beulah Moore argues that under CR 43.03 the court had to either continue the case or allow the affidavit to be read. She cites no authority for this position and Clay’s Kentucky Practice, Vol. 7, mentions nothing to support this argument. The trial court offered its assistance in getting the witness to the trial but appellant Moore acted no further on the matter even though there was enough time to do so. We conclude that the trial court properly excluded the affidavit, for if it portrayed the testimony Nora Gee Thompson would give it was immaterial. The witness was a waitress who had seen Crockett and Childers in a restaurant shortly after the accident. The affidavit stated that she heard them talking and “they said the (Moore) station wagon was behind them * * * and wrecked; that they appeared to be worried and upset and they went on without stopping after the accident.” The fact is that Crockett did stop after the accident and attempted to give aid to the injured women.

Trooper Boyle’s testimony on the speed of the Moore car at the scene of the accident was also objected to by counsel for appellant. Eldridge v. Pike, Ky., 396 S.W.2d 314 (1965) is relied on as authority for the proposition that just being a member of the [544]*544Kentucky State Police does not qualify one to give opinion evidence as an expert. Appellant is correct as to the Eldridge holding, but here the record shows that Trooper Boyle had been a member of the force for six years, had investigated more than 450 accidents, and had received special schooling on the various techniques and procedures involved in investigating traffic accidents. He presented credentials beyond just being a member of the force which distinguishes this situation from Eldridge v. Pike. Also Boyle was on the scene immediately after the accident occurred which distinguishes our facts from those in appellant’s case of Redding v. Independent Contracting Co., Ky., 333 S.W.2d 269 (1960), where the officers arrived more than thirty minutes after the accident. Boyle’s experience with traffic accidents also distinguishes this case from Redding.

The trooper estimated the speed of the Moore station wagon at the scene of the accident as being between seventy and eighty miles per hour but admitted that this was a rough estimate. As mentioned above, Beulah Moore objected to Boyle’s testimony about the speed of the car on grounds that he was not an expert, but in Kentucky Power Company v. Kilbourn, Ky., 307 S.W. 2d 9 (1957) we said: “The decision as to qualification of the witness as an expert rests in the discretion of the trial court.” We think Officer Boyle was well qualified to give a knowledgeable opinion of what occurred and whether speed caused the occurrence. In Eldridge the officer gave an opinion about which car entered upon a bridge first and there was no supporting data to justify an opinion on that issue. In the case at bar there were lengthy skid marks on the highway and on the berm as well as the position and damage to the station wagon which certainly would qualify as a basis for the trooper’s opinion about the speed of the station wagon at the time. In summary, Boyle had been systematically trained for the very work he did here; he was far better qualified in his field than a novice. Wigmore, Evidence, Sec. 556. The particular experiential qualifications of a witness are invariably determined by the trial judge, and his decision ordinarily will not be disturbed on appeal. Wigmore, Evidence, Sec. 561.

Another issue presented by Beulah Moore for review concerns the court’s decision in denying her motion for a directed verdict at the close of her testimony. The evidence shows that no living person saw the accident except Beulah Moore, Mabel Wheeler, Charles Crockett and Tom Child-ers. Their testimony did not agree on the cause of the accident.

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Related

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428 S.W.2d 222 (Court of Appeals of Kentucky, 1968)

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Bluebook (online)
425 S.W.2d 541, 1968 Ky. LEXIS 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-wheeler-kyctapp-1968.