FORT, J.
Defendant was convicted by a jury of criminally negligent homicide, ORS 163.145. He appeals from the resulting judgment, asserting as his sole assignment of error the admission of certain testimony of two police officers.
A brief statement of the facts relevant to a determination of the particular question presented is necessary.
The defendant was the driver of a car involved in an intersection collision with a motorcycle upon which the decedent was riding as a passenger. Defendant was traveling west on Eighth Street in Eugene. There was a stop sign at the intersection requiring traffic on Eighth Street to stop prior to entering Chambers Street. The motorcycle was traveling south on Chambers Street, the through street.
Promptly following the collision two police officers were called to and made a careful investigation of the scene of the accident. One of the areas of investigation concerned the tire marks left on the pavement by defendant’s car. The record shows that Officer Michaelson was the principal investigating officer. We set forth in a footnote1 the portions of the testimony relevant to the assignment of error.
[22]*22From that testimony and from defendant’s brief it appears that the claimed error relates both to the qualification of the witness as an expert and to a conten[23]*23tion that whether the tire marks described by the witness supported a conclusion that they were made in acceleration or deceleration of the vehicle was an invasion of the function of the jury and thus that expert opinion concerning either was inadmissible.
[24]*24Defendant contends that "the jury should have been apprised of the observations of the police officers and allowed to form their own opinions and draw their own conclusions.” Defendant contends that he was accelerating slowly into the intersection after stopping and that the collision resulted from the excessive speed of the motorcycle. He contends further that the "opinions of [the] officers * * * precluded the jury from considering defendant’s theory of the cause of the accident.”
Principal reliance is placed by defendant on the case of Bailey v. Rhodes, Adm., 202 Or 511, 276 P2d 713 (1954). In that case the police officer, who investi[25]*25gated the accident about an hour after it occurred but was not an eyewitness to it, had been permitted to testify that in his opinion the defendant’s vehicle was traveling at a rate of speed "possibly between 70 and 90 miles an hour” at the time of the accident. See also: Webber v. Yaden, 232 Or 113, 115-16, 373 P2d 1007 (1962).
In reversing the trial judge, the court in Bailey said:
"In every case, when the matter of speed is involved, the question primarily is not how fast the automobile was traveling in specific miles per hour, but rather whether its speed, whatever it may have been in miles per hour, was excessive under all the facts, circumstances, and conditions existing at the time. Competent and qualified eyewitnesses who have observed a motor vehicle in motion may give their opinion as to the rate of speed it was traveling, but one not an eyewitness cannot express an opinion, based solely upon the physical facts existing following an accident, as to the rate of speed prior to the accident. A jury is as well able to draw its own inferences and reach its own conclusions from the facts presented as is the witness. Such testimony invades the province of the jury.
"In the instant case all facts upon which the police officer based his opinion were clearly presented by the evidence * * *. From these facts, the jury was in a position to determine whether the car, immediately prior to the accident, was traveling at an excessive rate of speed under the circumstances; it did not need the assistance of an expert.” 202 Or at 523-24.
More recently, our Supreme Court discussed Bailey in Marshall v. Martinson, 268 Or 46, 55-56, 518 P2d 1312 (1974), as follows:
"In Bailey v. Rhodes, Adm., 202 Or 511, 523, 276 P2d 713 (1954), it was held by this court that 'one not an eyewitness cannot express an opinion, based solely upon the physical facts existing following an accident, as to the rate of speed prior to the accident.’ Although that decision has been strongly criticized, it has been cited with approval in several more recent decisions.
"In Thomas v. Dad’s Root Beer, Etc., 225 Or 166, 169, [26]*26356 P2d 418, 357 P2d 418 (1960), we held that this same rule 'should apply also to testimony from one not an eyewitness to the accident concerning the point of impact on the highway.’ In Vancil v. Poulson, 236 Or 314, 327, 388 P2d 444 (1964), we reaffirmed that holding.
"We are not called upon in this case to overrule either Bailey v. Rhodes, supra, or Thomas v. Dad’s Root Beer, Etc., supra. Even assuming, however, that the science of accident reconstruction may progress to the point that the rulings in those cases should be re-examined, it does not follow that it was error for the trial court to exclude the expert opinion testimony in this case.” (Footnotes omitted.) 268 Or at 55-56.
The issue in Bailey addressed by the court related to the officer’s estimate of the speed of the vehicle when it left the highway. Proper objection was made thereto. Here, on the other hand, examination of the transcript reveals not only that the first expression of an estimated speed by either officer was brought out by the defendant himself in his cross-examination of the first officer,2 but also that he did not object to testimony from either officer concerning the speed of the [27]*27vehicle at various points within the intersection. His objections were clearly directed to the qualifications of the officers as experts to express opinions concerning the inferences which could be drawn from the various tire marks. One officer had arrived at the scene within about 10 minutes after the accident and observed the marks; the other arrived about 35 minutes after the accident. Thus we need not and do not decide here the admissibility of the officers’ testimony relating to speed, since defendant himself first brought the evidence in and because no proper objection was made to it.
Here, the primary issue involved the relationship, if any, discernible from the tire marks concerning when and where defendant’s vehicle was accelerating or decelerating in the vicinity of and within the intersection. The challenge to the testimony related to whether the tire marks of defendant’s car revealed, in the officers’ opinions, that defendant’s car was at relevant places accelerating or decelerating, and specifically as to whether the officers were qualified to express opinions concerning the marks.
Here, Officer Michaelson, the principal investigating officer, testified at length as appears in footnote 1 concerning the tire marks and described carefully the differences he observed in the marks left by the tires. Clearly such testimony was admissible. Wood v. Meyer, 261 Or 113, 116, 492 P2d 468 (1972); State v. Betts, 235 Or 127, 134, 384 P2d 198, 7 ALR3d 1445 (1963).
[28]
Free access — add to your briefcase to read the full text and ask questions with AI
FORT, J.
Defendant was convicted by a jury of criminally negligent homicide, ORS 163.145. He appeals from the resulting judgment, asserting as his sole assignment of error the admission of certain testimony of two police officers.
A brief statement of the facts relevant to a determination of the particular question presented is necessary.
The defendant was the driver of a car involved in an intersection collision with a motorcycle upon which the decedent was riding as a passenger. Defendant was traveling west on Eighth Street in Eugene. There was a stop sign at the intersection requiring traffic on Eighth Street to stop prior to entering Chambers Street. The motorcycle was traveling south on Chambers Street, the through street.
Promptly following the collision two police officers were called to and made a careful investigation of the scene of the accident. One of the areas of investigation concerned the tire marks left on the pavement by defendant’s car. The record shows that Officer Michaelson was the principal investigating officer. We set forth in a footnote1 the portions of the testimony relevant to the assignment of error.
[22]*22From that testimony and from defendant’s brief it appears that the claimed error relates both to the qualification of the witness as an expert and to a conten[23]*23tion that whether the tire marks described by the witness supported a conclusion that they were made in acceleration or deceleration of the vehicle was an invasion of the function of the jury and thus that expert opinion concerning either was inadmissible.
[24]*24Defendant contends that "the jury should have been apprised of the observations of the police officers and allowed to form their own opinions and draw their own conclusions.” Defendant contends that he was accelerating slowly into the intersection after stopping and that the collision resulted from the excessive speed of the motorcycle. He contends further that the "opinions of [the] officers * * * precluded the jury from considering defendant’s theory of the cause of the accident.”
Principal reliance is placed by defendant on the case of Bailey v. Rhodes, Adm., 202 Or 511, 276 P2d 713 (1954). In that case the police officer, who investi[25]*25gated the accident about an hour after it occurred but was not an eyewitness to it, had been permitted to testify that in his opinion the defendant’s vehicle was traveling at a rate of speed "possibly between 70 and 90 miles an hour” at the time of the accident. See also: Webber v. Yaden, 232 Or 113, 115-16, 373 P2d 1007 (1962).
In reversing the trial judge, the court in Bailey said:
"In every case, when the matter of speed is involved, the question primarily is not how fast the automobile was traveling in specific miles per hour, but rather whether its speed, whatever it may have been in miles per hour, was excessive under all the facts, circumstances, and conditions existing at the time. Competent and qualified eyewitnesses who have observed a motor vehicle in motion may give their opinion as to the rate of speed it was traveling, but one not an eyewitness cannot express an opinion, based solely upon the physical facts existing following an accident, as to the rate of speed prior to the accident. A jury is as well able to draw its own inferences and reach its own conclusions from the facts presented as is the witness. Such testimony invades the province of the jury.
"In the instant case all facts upon which the police officer based his opinion were clearly presented by the evidence * * *. From these facts, the jury was in a position to determine whether the car, immediately prior to the accident, was traveling at an excessive rate of speed under the circumstances; it did not need the assistance of an expert.” 202 Or at 523-24.
More recently, our Supreme Court discussed Bailey in Marshall v. Martinson, 268 Or 46, 55-56, 518 P2d 1312 (1974), as follows:
"In Bailey v. Rhodes, Adm., 202 Or 511, 523, 276 P2d 713 (1954), it was held by this court that 'one not an eyewitness cannot express an opinion, based solely upon the physical facts existing following an accident, as to the rate of speed prior to the accident.’ Although that decision has been strongly criticized, it has been cited with approval in several more recent decisions.
"In Thomas v. Dad’s Root Beer, Etc., 225 Or 166, 169, [26]*26356 P2d 418, 357 P2d 418 (1960), we held that this same rule 'should apply also to testimony from one not an eyewitness to the accident concerning the point of impact on the highway.’ In Vancil v. Poulson, 236 Or 314, 327, 388 P2d 444 (1964), we reaffirmed that holding.
"We are not called upon in this case to overrule either Bailey v. Rhodes, supra, or Thomas v. Dad’s Root Beer, Etc., supra. Even assuming, however, that the science of accident reconstruction may progress to the point that the rulings in those cases should be re-examined, it does not follow that it was error for the trial court to exclude the expert opinion testimony in this case.” (Footnotes omitted.) 268 Or at 55-56.
The issue in Bailey addressed by the court related to the officer’s estimate of the speed of the vehicle when it left the highway. Proper objection was made thereto. Here, on the other hand, examination of the transcript reveals not only that the first expression of an estimated speed by either officer was brought out by the defendant himself in his cross-examination of the first officer,2 but also that he did not object to testimony from either officer concerning the speed of the [27]*27vehicle at various points within the intersection. His objections were clearly directed to the qualifications of the officers as experts to express opinions concerning the inferences which could be drawn from the various tire marks. One officer had arrived at the scene within about 10 minutes after the accident and observed the marks; the other arrived about 35 minutes after the accident. Thus we need not and do not decide here the admissibility of the officers’ testimony relating to speed, since defendant himself first brought the evidence in and because no proper objection was made to it.
Here, the primary issue involved the relationship, if any, discernible from the tire marks concerning when and where defendant’s vehicle was accelerating or decelerating in the vicinity of and within the intersection. The challenge to the testimony related to whether the tire marks of defendant’s car revealed, in the officers’ opinions, that defendant’s car was at relevant places accelerating or decelerating, and specifically as to whether the officers were qualified to express opinions concerning the marks.
Here, Officer Michaelson, the principal investigating officer, testified at length as appears in footnote 1 concerning the tire marks and described carefully the differences he observed in the marks left by the tires. Clearly such testimony was admissible. Wood v. Meyer, 261 Or 113, 116, 492 P2d 468 (1972); State v. Betts, 235 Or 127, 134, 384 P2d 198, 7 ALR3d 1445 (1963).
[28]*28He also described the differences between the marks made on the pavement during rapid acceleration and those made during rapid deceleration of the tire, and particularly with reference to the tire on the wheel which furnished acceleration power in defendant’s car.
Is then the determination from tire marks made upon pavement whether a vehicle was at a given place rapidly accelerating or decelerating a matter concerning which a person with the requisite knowledge or expertise who has actually observed those marks may express an opinion?
In McCormick, Evidence 31, § 14 (hornbook series, 2d ed 1972), the author states:
"If an expert witness has firsthand knowledge of material facts, he may describe what he has seen, and give his expert inferences therefrom. In this situation, it is unnecessary to couch questions eliciting the inferences in hypothetical form and it would certainly weaken the effect of the testimony to do so. * * *” (Footnote omitted.)
We conclude that nothing in Bailey is inconsistent with the rule announced above. It follows, then, that the matters above set forth relating to the tire marks were properly the subject of opinion evidence.
Was Officer Michaelson qualified to express an opinion on those matters? In Ritter v. Beals, 225 Or 504, 525, 358 P2d 1080 (1961), the court said:
"The correct rule is that an expert’s fitness to answer opinion questions must first satisfy the discretion of the trial judge. The expert then may express an opinion on an ultimate fact if the ultimate fact cannot be equally well decided by the jury from the same evidence upon which the expert has based his opinion. Welter, Adm’x v. M & M Woodworking Co., 216 Or 266, 278, 338 P2d 651; Darling v. Semler, 145 Or 259, 27 P2d 886; Goldfoot v. Lofgren, 135 Or 533, 541, 296 P 843. The decision whether to receive the testimony should be left to the sound discretion of the trial judge. Following the preliminary screening by the trial judge, the jury ulti[29]*29mately passes upon the credibility of the witness, the soundness of his judgment, and the existence of the facts upon which his opinion was predicated. Goldfoot v. Lofgren, supra.”
See also: Sandow v. Weyerhaeuser Co., 252 Or 377, 449 P2d 426 (1969); Grismore v. Consolidated Products Co., 232 Iowa 328, 5 NW2d 646 (1942);3 McCormick, Evidence, supra at 24.
Here we conclude that the witness was qualified by both training and experience to express his opinion concerning whether the tire marks he personally observed disclosed that the vehicle was accelerating and decelerating at the observed places on its route of travel. We conclude that the trial court did not abuse its discretion in allowing Michaelson to so testify. The challenged testimony of the other witness, Officer Thies, who was present at the scene after the accident and assisted Officer Michaelson in the investigation, including his own careful observation of the tire marks on the pavement, corroborated Officer Michael-son concerning the marks, and his opinion concerning their admissibility is governed by the same rules.
Affirmed.