The sole issue presented on this appeal is whether the trial court abused its discretion when it admitted defendants’ expert opinion testimony concerning the speed of appellant’s vehicle. We hold that there was no abuse of discretion.
Plaintiff, Esther Bohach, commenced an action for damages sustained in a collision between the car in which she was riding as a passenger, driven by her husband, Nick Bohach, and a truck owned by defendant Gene Thompson and driven by defendant William Summers. Defendants impleaded Nick Bohach, appellant here, as a third-party defendant. An agreement was reached as to the amount of damages, leaving the only issue at trial the comparative fault between defendants and appellant. The jury found defеndants 60 percent causally negligent and appellant 40 percent causally negligent. Appellant’s motion for judgment notwithstanding the verdict or a new trial was denied, and this appeal fоllowed.
The accident out of which this litigation arose occurred in Polk County at 4:30 p. m. on September 17, 1970, a clear, sunny day. Defendant Summers was driving defendant Thompson’s potato truck south on Highwаy No. 220, which is a straight and level 22-foot-wide concrete highway with 9-foot shoulders on both sides. Summers, desiring to make a left-hand turn into the private driveway of Thompson’s farm, pulled the truck off onto the right-hаnd shoulder of the road to allow a car behind him to pass. Summers then turned on his left turn signal, looked into his rear- view mirror, and observed another car coming 500 to 600 feet behind him. Believing he had enough timе, Summers proceeded to make the left-hand turn. Appellant’s car collided with the rear of the truck on the left-hand side of the road. Summers estimated appellant’s car to be “coming a lot more faster than 50 miles per hour.”
From appellant’s perspective, appellant was traveling south on Highway 220 when
After the accident, a Minnesota Highway Patrol officer took photographs of the road and the damaged vehicles. The officer also measured thе skid marks produced by appellant’s car to be 150 feet. On September 4,1973, nearly 3 years after the accident, Dr. Robert McDougal began investigating the accident at the request of defеndants. Dr. McDougal examined photographs of the accident and tested the highway surface to determine its coefficient of friction. At trial Dr. McDougal testified that in his opinion appеllant’s automobile was traveling at least 65 miles per hour at the time of brake application. This calculation was based upon a skid-mark factor of 58 1/2 miles per hour and a deformаtion factor of 8 miles per hour. Dr. McDougal’s opinion was admitted over the objection of appellant.
In Murphy v. Hennen,
“The admissibility of a claimed expert’s opinion is within the discretion of the court, and any ruling will not be reversed unless there is an abuse of discretion which results in prejudice to the objector.”
Therefore, the question on this appeal is whether the trial court abused its discrеtion in admitting the expert opinion.
Although an estimate of automobile speed is generally viewed as a subject on which a lay person “gifted with reasonable intelligence, given a fair opportunity to observe, and having ordinary experience with moving vehicles may give opinion testimony,” LeMieux v. Bishop,
“* * * (1) whether there exists sufficient factual data to assure a reasonably complete and accurate reconstruction of the accident without indulging in speculation; and (2) more importantly, whether such opinion testimony will assist the triers of fact.”
Appellant argues that there was “undisputed eyewitness testimony” concerning speed at the trial and therefore no need to introduce expert testimony on thе subject. The eyewitness testimony to which appellant refers is the testimony of both plaintiff, Esther Bohach, and appellant, Nick Bohach, to the effect that they were going less than 60 miles per hour when the truck
turned in front of them. However, in LeMieux there was eyewitness testimony from the defendant that “he was driving about 50 miles an hour” and from his passenger “that he was not ‘going fast’ ”
“* * * [W]hen viewed in the context of our adversary system, where eyewitness testimony as to speed is еither nonexistent or unsatisfactory as to one or the other of the adversaries, it is proper to seek the aid of an expert.”
When the instant case is “viewed in the context of our аdversary system,” it is clear that the testimony of Mr. and Mrs. Bohach, both parties adverse to defendants, as to the speed of their automobile was wholly unsatisfactory to defendants. Thereforе, it was not improper for defendants to seek the aid of an expert.
The remaining question is whether there were sufficient factual data to support the expert’s opinion. There аre two contested elements in the factual foundation for Dr. McDougal’s expert opinion. First, Dr. McDougal did not begin to investigate or reconstruct the collision until 3 years after the accident. Thus, in calculating the coefficient of friction in his formula, he was forced to assume that the condition of the road when he personally tested it was substantially the same as when the aсcident occurred. Second, Dr. McDougal did not directly examine the automobiles involved in the accident. Thus, in calculating the speed of the automobiles at impact, he was forсed to rely on photographs showing the nature and extent of deformation.
In Grapentin v. Harvey,
“* * * With this much variance depending upon the type of concrete — to say nothing of the presence or absence of gravel— the mere assumption of a ‘regular concrete highway’ seems to us too vague to permit an expert opinion on spеed, under the circumstances here.”
We reached a similar conclusion in Sanchez v. Waldrup,
supra,
where it was shown that the expert witness relied on general descriptions of the surface of the icy road where the accident occurred. In rеversing and granting a new trial, we said (
“* * * Without more definite knowledge as to the true condition of the highway and use of a coefficient of friction that would be justified under the facts, the expert’s oрinion was of no value.”
However, unlike the experts in Grapentin and Sanchez, Dr. McDougal personally tested the highway in question, and there was no evidence presented at trial that the сondition of the highway had changed in any significant way from the time of the accident. Further, the alleged deficiencies in Dr. McDougal’s factual basis go more to the weight of the expert’s oрinion than to its admissibility. As we stated in LeMieux (
“* * * [A]ny error in calculations or in the asssumption of facts or data upon which the opinion was based goes to the weight of the testimony, not to its admissiblity.”
In summary, it aрpears that the alleged deficiencies were not oversights by Dr. McDougal but were conditions of which he was aware and which have not been shown from cross-examination, or other еvidence, to have had any significant effect on Dr. McDougal’s final opinion. As would be expected, these deficiencies were adequately brought to the jury’s attention on cross-exаmination. Based upon the foregoing, we conclude that, while the admission of this testimony approaches the outer limits of the trial court’s discretion, there was no error in admitting the opinion testimony of Dr. McDougal.
Affirmed.