*1 Appel- KAY FOREMAN, DIANE FEELEY Plaintiff lant, MINNIE, MICHAEL LEE County, Yellowstone Mercury, Inc., Montana and Bob Smith Lincoln Defend- Respondents. ants and No. 83-344. May
Submitted on Briefs
1984.
Aug.
Decided
1984.
Rehearing
Denied Nov.
1984.
MR. JUSTICE Opinion HARRISON delivered the Court. from brings appeal this verdict District,
Thirteenth County, Judicial Yellowstone for the respondents defendants. The found the not liable for injuries appellant sustained an automobile accident deputy’s between a sheriffs a vehicle which vehicle and appellant rode as a passenger. We affirm. March, (then 15)
On appellant age accepted a Bradley They ride from school with Shaw. drove around Billings They stopped appellant’s par- for a few at hours. stopped ent’s house and also at a drive-in for dinner. Fol- around, lowing period looking this for and visit- friends, ing purchased pack” Shaw a “six of beer at a local “park,” bar. He up then drove to the “Rimrocks” drink beer and listen to music. p.m. they Billings.
About 8:30 started to return to Around time, the same a severe accident occurred on the west side of Billings. dispatched deputies The sheriff’s office Michael Lee Minnie and Charles Maxwell to and assist investigate They patrol at the accident scene. drove their cars out of Billings, blaring emergency lights flashing, with sirens and in westerly parallel direction on Route 3 to the “Rim- speed ve- respondent’s rocks.” Evidence differs as to the hicle, but it drove per Respondent exceeded 65 miles hour. approximately one-quarter of a one-eighth between mile ahead of Maxwell.
Shaw drove his vehicle from 23rd Street and turned out Respondent, apparently front of respondent onto Route 3. Shaw, stop unable to with slammed into colliding or avoid high- the side of off the Shaw’s vehicle. Both cars skidded way sides of the road. pits and into the barrow on different accident, day requested
A or two after the jewelry an officer for some she had search the Shaw vehicle *4 empty lost. The search found several conducting officer bottles, drug beer cans and some cans and a few full beer paraphernalia. one consuming
Both at least and Shaw admitted hav- They beer admitted during evening. the course of the ing consumed some marijuana prior to the date of the acci- dent, adamantly any but having denied consumed mari- juana on the date of the accident. prior trial,
Just to the appellant’s attorney mo- sought a tion in preclude limine to any the admission of evidence of the discovery of drug paraphernalia vehicle. Shaw’s The appellant’s District Court denied A jury motion. then respondents found not liable for the injuries appellant suf- fered as a result of the accident. raises the following appeal: issues for
(1) Did the District Court err permitting Deputy Max- well testify as an expert witness and state his conclusion as to the cause of the accident?
(2) Did the court in giving err a jury instruction regarding statutory prohibition against under influence?
(3) Did the court err in denying appellant’s jury instruc- tion regarding not imputing appellant’s negligence from the negligence of Shaw?
(4) Did the court err in denying appellant’s motion limine preclude the admission into evidence of the drug paraphernalia found in the Shaw vehicle?
(5) Did render a contrary verdict to the evidence and law?
Appellant first contends that the court erred in permitting Deputy Maxwell’s testimony regarding the cause of the ac- cident under Rule Montana Rules of Evidence. There was no need for such because the subject matter beyond was not the ordinary understanding of the jury. She questions also Deputy qualifications Maxwell’s an witness in this case. improperly He also regarding testified legal cause of the accident.
We set forth the standard that the determination qualification competency of expert witnesses rests largely with the judge, trial showing and without a of an abuse of discretion such determination will not be dis Goodnough (Mont. turbed. 1982), v. State 9,] Mont. [199 *5 446 trial affirmed a St.Rep. 1170. This Court
647 P.2d 39 neces- meet highway patrolmen court’s determination for automo- testify expert witnesses sary qualifications testify regarding permitted them to bile accidents and Goodnough State, supra; Workman v. of the accident. cause McIntyre Co. (Mont. 1980), 617 P.2d Construction v. Neal (1974), Rude Mont. 530 1637; 165 St.Rep. P.2d 428. not the Deputy Maxwell was
Appellant contends that not would accident and therefore investigating officer at the at the accident Maxwell was qualify expert as an witness. accident site, the accident and assisted he witnessed clearly experience with his investigation. That combined qualifies expert. him as an legal cause Maxwell stated the
Appellant contends Max inadmissible. testimony in his which was the accident testimony: in his statements following well made the opinion, have an you Do “Q. [By respondents] counsel for your all of upon based upon your experience and based any was case, or not there as to whether knowledge of this case? Bradley Shaw this violation of law Object, Your appellant]: for “MR. HARTMAN [counsel conclusion. Honor, legal it calls for a grounds on the may You answer. “THE COURT: Overruled.
“A. Yes.
“Q. opinion? What is that way yield right I failed to just
“A. believe that he believe, beverages. of, I alcoholic because Maxwell, as to Officer you opinion, have an “Q. Do imme- place Minnie, time and at the whether or not Officer and collision, in a lawful driving was diately preceding his vehicle? in control of careful manner If the Court appellant]: for “MR. HENNESSEY [counsel testimony, it for this no foundation has been please, there not and it’s immaterial it’s province jury, of the invades the proper question. may You is overruled. objection “THE The COURT: answer.
“Q. opinion? What is that legal
“A. I correct and believe that he was manner, sir.”
While Maxwell testified as to what he considered the accident, was adequate opportunity given cause of the underlining the anyassumptions to elicit or facts Therefore, testimony re- opinion. weight mains with the and the was admitted. expert testimony also was un- contends that
necessary beyond because the cause of the accident was not the ordinary understanding jury. Appellant of the cites (Mont. 1980), Ployhar Board Trustees Missoula 609 of of 1226, 744, P.2d St.Rep. support. 37 for
We in find the facts the instant case dissimilar to Ployhar, supra. Ployhar involved the accidental death by heavy caused equipment being top backed over the of the decedent. The instant case involves an accident where the parties alleged different factors caused the accident. Appellant must have believed the cause of the accident was complicated expert because in an witness brought she to testify regarding speed properly the of the vehicles. As was Ployhar, supra: stated the dissent long expert testimony “This Court has held that should be admitted whenever the issue the concerns a sub- jury before ject of such a average person nature that the cannot reach as intelligent experience as has had conclusion one who Demarais v. (1931), Johnson See, with subject. the Ployhar 366, 370, P.2d at Mont. 3 P.2d 285.” at 612 (Harrison J., dissenting). prop We hold in the trial court instant case that erly testi subject required determined the matter mony so as to assist and it admitted Max jury well’s testimony.
We turn instructions. regarding to the next issue admitting the by contends the trial court erred following jury instructions: provide that it
“You instructed that Montana Statutes are any person influence of al- is for who is under the unlawful physical drug in actual cohol or a narcotic to drive or be upon highways of this state.” control of a motor vehicle Appellant argues came into the that insufficient evidence disagree. giving of this instruction. We trial warrant the 13 which instructs that it is unlaw- Court’s instruction No. the influence of al- ful to drive a motor vehicle while under along in- narcotics, with court’s cohol or should be read struction No. 18: you person in this acci-
“If that a find from the evidence any you statute, are dent in violation of conducted himself negligence of as a matter instructed that such conduct was law. action, no conse-
“However, in a violation of law is of this quence proximate of or contributed unless it was a cause by you proximate injury to have been cause to an found by plaintiff.” suffered appellant giving objection to the
No was made by the determined of this instruction. The issue be basic any, degree negligence, if on the this case was part No. vehicles. Under instruction of both drivers appropriate if to instruct that the driver it becomes riding influ under the was was the car which *7 driving, drugs it then ence of alcohol or narcotic while negligence matter of law. should as as a be considered Reading together, No. it is clear that the two instructions proper on a instruction 18 clarifies No. 13 and it becomes the law of the case. case, indicated Shaw consumed
In the instant evidence prior cans Several beer at least one beer to the accident. vehicle, found in also an officer and bottles were found the drug paraphernalia evidence in Shaw’s vehicle. Sufficient in the under indicates that Shaw could have been jury the instructed fluence. We hold the trial court on this matter. contends the court erred failing provide
jury regarding instruction not imputing negligence the of appellant. Shaw to Absent a showing joint enterprise negligence of a driver of a imputed vehicle cannot be to a passenger.
We find no error in giving occurred the omission of appellant’s comparative instruction. No negligence theory in implied this case plaintiff that negligently acted to cause injuries. her The merely court jury instructed the to decide if the respondents acts of the proximate were the cause of the accident. Because the did appellant’s not consider negligence, if any, in the determination of respondents’ neg ligence, then this unnecessary. instruction became
Appellant next argues the court erred her denying motion in limine to exclude parapher evidence of the drug nalia found Shaw’s vehicle. She asserts its prejudicial ef fect outweighs probative value of this evidence. We disagree.
In case, the instant the prejudicial effect of the evidence did not outweigh probative its value. While both Shaw and testified that they did not any marijuana smoke on day accident, they smoking previ- did admit it ous to day. Evidence also indicated Shaw had owned the vehicle for a prior short time to the accident. Because the paraphernalia vehicle, was found that would tend to show Shaw actively consuming controlled substances within a days few par- accident. The evidence of drug aphernalia possibly impeaches appellant’s and Shaw’s testi- mony supports theory negligence that Shaw’s caused the accident. We prop- therefore hold the trial court erly denied the motion limine.
Appellant finally contends the rendered a verdict con- trary to the law and the facts. She contends the evidence clearly respondent demonstrates acted negligently. We disagree.
In reviewing sufficiency of the evidence we “re view the evidence in light prevailing most favorable to the *8 450 substan- only is a lack of
party. We will reverse where there support to tial evidence verdict.” record, in the the credibil- conflicting “If there is evidence is ity conflicting such the weight given and to evidence v. Jac- Anderson province and not this court.” queth (Mont. 1063, 1064, 1983), 493,] mont. 668 P.2d [205 (Mont. Hoyt 1981), citing Gunnels 40 St.Rep. St.Rep. 633 P.2d 1492. vehicle was respondent’s
Evidence at trial indicates Evi hour. traveling sixty-five ninety per between and miles an emer pulled dence also out front of indicated Shaw flashing. its gency blaring lights vehicle with its siren and alcohol, several beer consuming Shaw admitted some were found his drug paraphernalia cans and bottles and Clearly support existed vehicle. sufficient evidence to jury’s verdict. had substantial evidence to We hold justify the verdict. hereby is
The verdict affirmed. and MR. JUSTICES MR. CHIEF JUSTICE HASWELL WEBER and GULBRANDSON concur. MORRISON, dissenting:
MR. JUSTICE I that it holding reverse new trial would and remand for a opinion permit give error to officer to investigating was cause of this accident. regarding the allowing Court liberal law enforcement This has been The time testify to of an officers about cause accident. evidentiary position. come to reevaluate our has have, training, ac- through Some law enforcement officers quired knowledge may some which allow them of recon- testify on matters accident witnesses However, should be training of these officers struction. expertise. have they where do some confined those areas from instance, may speed an to estimate For officer be able Likewise, may be able to determine skid marks. an officer point debris. On the other impact gouge from marks and hand, testifying there is no basis for an officer yield right-of-way cause of an accident was failure to beverages type because alcoholic were consumed. This opinion testimony totally lacking is foundation. The of- *9 position ficer inis no better to draw such a conclusion than jurors. opin- are individual We would not allow the officer’s ion violation, reflected in the of a ticket issuance for traffic to be admitted into evidence. Likewise the officer’soral tes- timony opinion regarding about his law violations should judicial blessing. not receive our testimony The admission of the officer’s in this case ex- precedent previously by ceeds even the set this Court. I be- testimony lieve the time has come to rein in the en- law forcement officers and confine that actually expertise those areas where the officer has some apart people generally. from Therefore, that held our I would reverse and remand for a new trial. dissenting:
MR. SHEEHY, JUSTICE I concur with Justice Morrison.