*1 Fund, Expressway presented re- to alternative Our writ of mandamus spondent peremptory, directing respond issuance of a The will be made check. approved warrant was signed $486,- ent to issue a check the amount of Roos, County Supervisor, 242.04, Fund, Lawrence K. Expressway pay Revenue, contains face a Rob- to certification able Collector Missouri Crawford, ert County Auditor, D. Highway City, “that State Commission, Jefferson there is sufficient unencumbered balance Missouri. It is so ordered. the appropriation against account All concur. charged
this claim permit payment is to same.” Respondent refuses to issue
check. Library County rel. In State ex Jackson Mo.Sup., Taylor, District v. “ ** *
623, 625, Section we said: duty of be the provides: ‘It shall
110.240 presentation treasurer, upon county HOUSMAN, Respondent, Mildred proper any him of warrant drawn enough money authority, there be if shall v. fund belonging depositary in the Benjamin FIDDYMENT, Appellant. out is upon drawn which said warrant No. 52185. payable, draw same of which the is county county check treasurer Missouri, Supreme Court legal depositary in favor holder En Banc. * * has warrant, This court said 13, Nov. ‘ * * * doc- It is the well-settled held: county treasurers trine this state that officers, be can simply ministerial * * * compelled perform their duties. jurisdiction
“There is no doubt of county against mandamus
this court prop- pay who refuse to claims
treasurers ’ erly ex rel. audited.” State Wheeler
Adams, supra, Mo. 61 S.W. [161 349] ‘ * ** there [2], 1. c. and cases cited. act, public applied
A ministerial
officer, thing is defined to be act or required perform by
which he di- authority upon given legal
rection of facts, may independent
state of of what he propriety impropriety
think ’** doing particular act case. Cook,
State ex rel. 174 Mo. Jones 493.” S.W. County v.
The decision in St. Louis Commission, Highway supra, is con
State questions
trolling and is decisive of the duty It proceeding.
raised in this respondent honor the warrant. *2 Curtis, Strong,
Farrington & Thomas Wilson, Springfield, plain- Richard K. for tiff-respondent, Mildren Housman. Arnold, Sanders, F. H. Dean William Daniel, City, Ray Clamp- B. H. Kansas W. defendant-appellant, ett, Springfield, for Caldwell, Blackwell, Matheny, Sanders & Ellis, City, Daniel, Clampett, Rit- Kansas Dalton, Springfield, of coun- tershouse & sel.
HOUSER, Commissioner. brought Housman an action for
Mildred $50,000 injuries damages personal for against Benjamin Fiddyment, who filed a $27,500 personal in- counterclaim for property all out juries damages, arising automobiles head-on collision of their U, blacktop road Highway an 18-foot County. ver- There was Christian petition $16,000on plaintiff dict for De- plaintiff and for on the counterclaim. appealed ensuing fendant has from the judgment. liability tried only question right-hand) side the road” and its left question as which of
submitted was the a foot side within or two of the center of was across center and two vehicles the road. Asked on cross-examination roadway. traveling wrong whether he could have drifted over and party Each contended he was across the center of the road as came *3 wrong right and that the other was in the around the curve and down the hill with respect. wagon in pounds this loaded with 1000-1200 equipment, of defendant “I stated don’t liability Plaintiff’s evidence on consisted know whether I did sure.” Asked if plaintiff; of just before the he cutting Baker; a traf- witness named Stannard J. vehicle right, back to the he answered officer; eighteen fic a and photographer right.” “That’s He first saw the car many photographs, of which were taken when the vehicles were two or car three at of the collision before the scene lengths apart. The other car was then vehicles were moved. “possibly eighteen, twenty inches over the center,” coming speed at p. a of 50 m. h. driving Plaintiff that she was testified He did not know whether had he speed her 1951 Chevrolet sedan west at a apply the brakes. He was rendered un- p. h. or the road m. less “on the side of conscious. on,” belonged on “her” side of the road time; all of the that at no time did she let appeal whether only is issue any part of car get her across the center admitting the court erred road; was as close as she she expert accidentolo- plaintiff's get right-hand side reconstructionist, Baker, “as to Mr. gist or a bare the collision she “had Just occur- how, when collision where and coming glance” approaching of an vehicle red.” “far too down hill lane fast” in her right coming straight at her, front Director Re- Baker Stannard J. her her in- side of the road. Almost Traffic at Development and search stantaneously oncoming after she saw the University. A of Northwestern Institute car and before could “think she one major part engineer, he directs traffic thought” the collision her occurred and car development work and the research was knocked “back and down hill off electrical as an Educated the institute. the road.” did She not remember whether Na- staff of engineer, he was she applied her brakes. di- and Safety 1928-1945 Council tional lines for the transit safety rector liability evidence on consist- Defendant’s associated has been year. He Detroit one testimony, photographer, ed of his own founding since its the institute times with passerby as skid who testified to some observed, su- years has he in 1936. For scene, he photograph saw at marks motor ve- pervised crashes and studied twenty-one photo- vehicle and He conditions. under controlled hicles graphs taken at the scene of the accident has writ- He reconstruction. teaches traffic days 12 or 13 after the Defendant event. and texts, manuals, guides, articles ten driving testified that he was his 1959 Chev- He field. in this hundreds books wagon speed rolet station east at a of 52 of ve- speed to calculate invented devices h.; p. 53 m. that he came down one hill testified He has from marks. hicles skid and slightly over another turned to his as approximately 200 in court times right; slightly downgrade that he going expert. awards received various He occurred; when the that at all collision high- research distinguished service and times station was on its own proficient the science safety. way He road, “pos- side maps sibly half, (making photogrammetry two (his and a three foot from speeds given the directions a manual on the photographs) and wrote grant. government under a by their drivers. of the vehicles testified to photographs He taken examined all of qualifications His as an in the inspec- parties, both made a visual field reconstruction are not accident approxi- tion of the scene the accident contrary, challenged. defendant’s On the mately ten the event. Based months after argument has conceded in that he counsel drawing upon his foregoing position importance field of experience in of accident recon- the field reconstructing accidents and referred to him struction, testify as he was undoubtedly qualified. highly Nor are photographic follows: From opinions challenged his conclusion and damage, showing how vehicles col- far as truth accuracy are concerned. lapsed, gave the rela- *4 positions tive question admissibility of the two vehicles at is one of ex- moment of initial and at the mo- pert testimony. engagement
ment of maximum and illus- Mr. Baker positions was informed of the makes trated drawings, their with scale models the two vehicles involved as follows: positions positions
Relative at Relative at initial engagement contact maximum against Baker it forces Mr. testified as to the direction came rest. The against wagon station the front but also forces exerted the vehicles were from left, at engagement. maximum The forces from the back toward the center against plaintiff’s wagon. placed automobile were from the He arrows in the illus- tration, left, obliquely front and toward the indicate the direction left from above right. plaintiff’s auto- This caused her forces exerted automobile spin plaintiff’s during Knowing or rotate automo- collision and until mobile. rotated, debris,
bile and that defendant’s station stating rust, mud, road tar and wagon rotate, knowing did not by shock, broken loose moving and will against direction of the forces exerted continue to move the direction in which vehicles, approximately say what moving the car is ground, until it falls to the positions relative trajectory; vehicles were in in a that when the forward their first plaintiff’s contact. movement of automobile was stopped by superior force the station positions Based of the vehicles it, wagon split striking debris in that rest, principle after came did have second a chance reach the dynamics the vehicle with the automobile, ground then travel- greater momentum will reverse the direc- probable speed at a backwards of 25 tion of movement of the vehicle with the p. h., m. overtook the debris and batted lesser it momentum and move backwards it explained phenomenon back. He that this came, the direction from he con- in experimental occurs crashes. cluded that the station had consider- ably greater greater velocity momentum and during expressed He speed plaintiff’s than automobile trav- automobile engagement time of collision. the road parallel nearly eling west moving at an wagon was that the station *5 explained He how the rear ends of auto- southeasterly direc- in a 5 or 6° angle of colliding up, mobiles taking tend to raise prepared photogrammetry By tion. weight most of the off the rear wheels and and the road of the width overlay to show greatly increasing weight the the front on Laid segments. one-foot its division into wheels; physical that signs are often left portion the depicting photograph over the on the surface of the road to indicate the appeared, mark the scrub of the road where impact area where the occurred and that the of center the overlay the demonstrated typical signs tires, are scrub marks of made painted a not have did (which road as a result of the unusual downward force overlay showed the that He testified line). on the during front wheels maximum en- and a a foot started mark that the scrub gagement. He described a mark in scrub road; that the of the center half of north bituminous road as smearing of the' would vehicles touching the the initial bituminous ap- material as a result of the mark, and scrub of the be north plication heat, weight friction; stat- auto- the engagement of point maximum size, ed irregular that a scrub mark is n mobiles was and a a foot approximately rather dark, broad and getting lighter roadway. the center of half north moves, car with bulge at one end. have the sought to then Plaintiff tapers It off force the road di- the two position to scale reconstruct usually minishes straight is not but respect the road vehicles slightly curved, gen- in width and varies is re- court but the they together, came time oblique erally diagonal or to the Of it ground this on to allow fused the several photo- black shown marks ulti- “the asking him for amount to would graphs he identified one of them as a scrub He also case.” in this mate conclusion during mark made maximum (which went mark another identified pointed vehicles and out its characteristic as that the right) of the road qualities. It was his that the scrub sta- rear wheel of made mark was made the left front wheel tire for accounted other wagon. tion He wagon, the station by any and not giving photographs, appearing marks wheel of the by any station or wheel by the why they not made reasons of plaintiff’s automobile. physical He found no vehicles involved. explained part He either why braking debris was east on the evidence of automobiles, of mathe- engagement, maximum and accounted jurors matically apply brakes years for their failure to “It is ago: from ve- all conclusions basis to draw inference witnesses, The apart car them. lengths hicles were three when the evidence before automobile, facts, rule, from plaintiff’s state defendant first as a must general saw opinion. their form jurors taken with the are to in connection stated, upon a parties respective speeds; all as to their But the facts when are intelligent inquiry, there was sufficient if an inexperi- collision activate drawn therefrom Shown be brakes. cannot the ordi- photographs persons, 13 enced such as constitute defendant’s taken or accident, exception gen- days made nary jury, after the excluded Mr. Baker experience, who, by having rule, persons skid been marks thereon as not eral peculiarly observation, knowledge, made plaintiff’s automobile, for reasons or from such explained by him, qualified to draw conclusions physical facts, are, purpose aiding appearance for the and characteristics of give jury, their marks, up their failure connect to the An necessity. exception leading mark is allowed from wheel of manner, discharges the witness, automobile, and for other reasons. juror; permit plaintiff refused to to exhibit functions clear unless be admitted map prepared by never plat a scale should capable, are not jurors themselves graphically showing the relative knowledge positions experience or positions want vehicles in various from correct conclusions subject, to draw they courses and directions took proved.” stages different the moment of first contact until stop, came to a Co., Mo. R. Pac. v. Missouri Homan assigned portrayal reason that this would 617, citing the Sup., Mo. *6 usurp the function of jury. the others, case, Court among this Benjamin from following quoted approval the jurors, experi When for want of such necessity for 639, 733: “The 22 § C.J. knowledge subject ence or in under subject matter the testimony arises where quiry, incapable are of an reaching intelli the from removed inquiry an is so far of opinion gent without outside the courts aid that the ordi experience realm of common necessity out of admit the of ex fully nary jury, even when the facts are perts in expert the field. Allowing an to expect them, fairly be placed cannot give opinion upon an inquiry, a of therefrom, to a correct inference ed draw instead requiring of give that the witness competent to person and at no the same only facts, exception general is an to personal has knowl draw an inference such rule that witnesses must state facts. “The edge the facts.” of exception necessity.” is allowed from Cen tral Lines, & Southern v. Truck Inc. West question The determination Truck, 841, fall Mo.App., GMC 317 S.W.2d necessity in of rests in the first instance 851; Stephens City Co., v. Kansas Gas 354 judge the trial and sound discretion of 835, 606; Mo. 601, 191 S.W.2d Cole v. respect in this will set his be discretion Co., 277, Uhlmann Grain 340 Mo. 100 S.W. showing aside in the of absence a 311, 322; 2d Empire Cole v. District Elec City abuse discretion. Yocum v. Kansas Co., 824, tric 434, 331 Mo. 55 S.W.2d Co., Mo.Sup., Public Service 349 S.W.2d applied statement classic the rule 860,864, cited. and authorities determining whether should (quoted be admitted in evidence through pages testified 143 decisions) expressed above subjects. is that transcript variety a on wide Benjamin Metropolitan Ry. Co., 133 Benjamin St. and Homan Applying rule 274, 590, 593, Mo. 34 S.W. to more than subjects 70 to various we driven these 290 justifying granting fell into order a conclusion trial court of several 834, Chester, S.W.2d, l.c., new trial. In
error and must be found
have abused
304
we said: “We think it clear
the trial
rulings
discretion in its
hereinafter dis-
objections
overruling
cussed.
erred
permitting
and in
heretofore noted
the offi-
cer,
an eyewitness,
who was not
give
Particularly prejudicial was
ex
conclusion,
or
from the
learn-
pert’s testimony
point
of maximum
point
investigation,
ed
im-
as to
.of
engagement was a foot
a half
pact.
In
case
of Hamre v.
357
Conger,
road,
north
the center of
and that the
497,
242, highway patrol-
Mo.
209 S.W.2d
wagon
left front
wheel of
station
made
man
investigated
per-
who
the accident was
mark,
definitely
the scrub
lo
which was
court,
objection,
mitted
trial
over
point
a half
cated
foot and
to de
opinion,
state
location
fendant’s
left of
center
debris that had fallen from the vehicles in-
expression
opin
This was
volved,
point
impact. Upon
as to the
ion
position
as to
of the station
such
not a
appeal
court held that
this
immediately prior to
the collision and
evi-
proper subject
place
impact.
point
As
dence,
ruling
hence the
incompetent
such
and inadmissible
give
challenged opinion
witness
under the uniform
of the courts of
rulings
adhered to
was error. This court has
of this
Homan
state.
v. Missouri Pac. R.
the Hamre
adoption
view since
Co., 334
61,
617,
64
Mo.
S.W.2d
cert. den.
[Citing
Pulse
cases.]”
683,
1070;
561,
291 U.S.
54 S.Ct.
78 L.Ed.
objection
been
had
agreed
Court
if
30,
Co.,
Homan v. Missouri Pac. R.
335 Mo.
properly
diagram
which indicat
made to
869;
Highway
70 S.W.2d
Cornwell v.
Mo
ed
arrows the line of movement
Freight Line,
tor
348
152
Mo.
S.W.2d
path
having
of a car
crossed the
10;
Conger,
Hamre v.
Mo.
209 S.
having
wrong
line
been
242;
Jones,
W.2d
Mo.Sup.,
Pulse v.
218 S.
collision,
and fixed the
the time
553;
Wrinkle, Mo.Sup.,
W.2d
Cox v.
S.
high
impact,
648;
Mo.Sup.,
W.2d
McNeely,
Welch v.
way patrolman that
his investigation
871; Ryan
Campbell
S.W.2d
“66” Ex
the cars
diagram
showed where
825;
press, Inc., Mo.Sup., 304
Ches
occurred, “its admission
before the accident
Shockley,
831;
Mo.Sup.,
ter v.
been
error.”
would have
reversible
Pinkston, Mo.Sup.,
Duncan v.
*7
340 S.W.2d
S.W.2d,
this Court held
l.c. 556.
In Cox
[8];
Cavender, Mo.Sup.,
753
Williams
patrolman to
permitting
highway
a
that
[1];
volved technical mechanical
possessed
ordinary jurors.
judg-
In our
Objections
expert’s testimony
rulings
ment the
in Yocum
do
and Central
phase
inquiry
properly
on this
not,
re-
under the facts of
case under
timely
persuaded
made. We are not
view, open
Mr.
way
admission of
improper
that its
admission
cumulative
Baker’s
trav-
error,
merely, or that
constituted
harmless
*8
im-
eling
roadway
on the north side of the
impressive
having
qualifica
in mind the
mediately prior
collision,
fix-
to the
and
tions,
recognition
prestige
and
nationwide
point
impact
cen-
of
north of the
field,
Baker
of Mr.
in his
effective
and the
explain
subjects
roadway.
of the
do
convincing
and
manner in which he
ter
These
testimony. Although
ed his
had
jurors
application
principles
not involve an
Many
subjects.
1.
range
of
in
which are cited
the annota-
of
O’Neill
not au-
“Opinion
thority
respondent’s position,
tion
Evidence —Point
of Colli-
for
for no
sion,”
physical sufficiently facts were self ex- court erred the same reasons the For planatory and related to the oral the fol- opinions average on admitting juror, Mr. Baker’s of or- basis the ve- subjects: positions dinary knowledge, prac- lowing common sense and experience gained and tical ex- hicles with relation to each other the common life, roadway periences and the center reasonably relation to the be ex- collision; pected there thereof, inferences there- at the time of draw correct braking ve- no evidence of either from and determine with reasonable accura- was hicle, expert’s accounting traveling for or cy which was vehicle roadway wrong impact. exclusion of other marks on the side of the road at time of comprehension case In this A the above-mentioned as unrelated to this collision. subjects, jury had benefit of the under the circumstances of this vehicles, testi- submission, competence both who of the drivers of within the length. photographs average juror. fied Numerous terrain, roadway and revealed the for decision issue ultimate The surroundings. Many were taken of these wrong traveling vehicle (which shortly after the collision while the vehicles roadway when of the center respective positions at were in their still which, un a matter occurred) was impact highway patrol- rest, came to evidence, and circumstances der the investigating man was still and the station competence ken and within the burning. photographs was was still error prejudicial juror it was average and of the two vehicles were made from several expert, over opinion of the They to admit angles. graphically illus- different defendant, as to objection of the vehicles, the damage done trated the ve positions impact; overlap between the two cars how reference hicles with applied and how force of the was no roadway; there Marks on the affected the vehicles. marks. unrelated braking and as to roadway surface of and the debris plainly visible. cause reversed judgment consist- proceedings further remanded necessity resorting There was no ent with this experience specialized knowledge possessed by in order HENLEY, HOLMAN, J., C. reasonably accurate- jury to have reached a and STORCK- EAGER, DONNELLY single presented conclusion on the issue MAN, JJ., concur. days nearly In these modern this case. jurors experienced Marks all motorists. adopts as SEILER, J., dissents highways and debris on the scenes the Memorandum dissenting *9 collisions, examples damage done of the WELBORN, C. results when collide and the automobiles in dis- concurs FINCH, colliding J., dissents interaction of vehicles of the SEILER, opinion of senting re- matters of common observation. As a J. right the road at all times.
MEMORANDUM on his side of OF DISSENT be, as Obviously, was to the crux of case WELBORN, (dissenting). Commissioner be, was just it out to which vehicle turned Before where of collision. I respectfully must disagree opin- with the offered, numerous witness was ion HOUSER, C. had photographs, parties, offered both were been introduced into evidence. Some question “The qualification of the shortly taken at the scene of collision witness as an in the field concern occurred, posi- showing after it ing which his sought stopped tion of had follow- the cars necessity expert testimony admission intro- photographs the collision. Other in a given situation rests in the instance first subsequently. duced had been taken in the court, sound discretion the trial photographs marks revealed numerous tire its decision in respects those is not to be set obviously pavement. Plaintiff was aside in the absence showing an abuse more in certain of marks. interested (emphasis discretion.” supplied) Yocum Defendant, hand, the other tended v. City Kansas Public Company, Service Mo. emphasize in the markings appearing Sup., 860, 349 S.W.2d [1], also See photographs. Clearly, just which Smith, Mo.Sup., 372 S.W.2d Jones appearing photographs in the markings [11,12]; Dillenschneider Campbell, Mo. actually have related to the collision would App., [10-12]; upon larger bearing outcome of Rudowicz, Edwards v. Mo.App., 368 S.W.2d case. 503, 506-507 [4-7]. complicated was further situation These recognize cases the necessity for roadway the fact that the of the was
flexibility in determining admissibility party may honestly Each have unmarked. expert testimony. A range wide discre- proper believed he was tion granted must be judge the trial in ad- them Obviously, one at least mitting or excluding testimony. Ap- such Furthermore, opportu- was mistaken. pellant’s counsel, trial, at the acknowledg- so nity of each driver the other ve- to observe ed, stating: “Whether or not [the witness] extremely hicle before the collision solely up testifies is Honor; to Your it’s limited. purely discretionary opin- as to whether his ion would be beneficial jury; to this the trial Such was situation which if it is situation jury where the needs the Baker offered had before when benefit advice.” Determination in- After had been 'as a witness. the witness of whether or not the trial court has abused qualifications, there terrogated about necessarily discretion requires inadequacy objection that the was no particular of the circumstances be testify case con- of the credentials to witness’s sidered, qualification as well as the expert in the field of accident reconstruc- particular witness and objection Appellant’s general tion. testimony. case, In this proper deter- “I’m ob- was stated as follows: requires mination consideration of more capacity as jecting testifying to-his than the bare outline of my direct basis for reconstructionist plaintiff followed, and of the defendant, evidence, the objection the factual is that consideration, vacuum, were, in a as it photographs, evidence in demonstrable * * * expert’s testimony. At the time that lay availability witnesses expert testimony offered, plaintiff clear, had sufficiently and there is no need testified that he was on side of jury in ana- expert testimony to assist this road at situation, the time of the collision. Plaintiff’s lyzing any aspect of this factual counsel had read deposi- from defendant’s man tes- permitting and that so tion defendant’s statement that he was tify invading we are *10 294 posi deciding to position the ultimate fact as the The matter to the next relates impact.”
tion of these at time of vehicles the two vehicles at the time of maximum court, impact. objection, explained This the trial Again, overruled witness at obviously opinion was length merit for least without at the factors which his sweep place, based, two reasons. In the first was which included laws fundamental ing exclusionary dynamics appellant rule for which and detailed examination of the damage photo- clearly contrary contended was to numerous incurred as revealed appellate graphic decisions of state courts this evidence. The trial court not was recognizing required reject opinion finally given that there are certain well-rec to ognized expert testimony regard upon photographic areas because it was evi- jury upon gen- See dence facts of ah automobile collision. available to the erally principles City dynamics. Yocum v. Kansas Public Service Com known pany, 860; witness, Mo.Sup., v. training experi- virtue his 349 S.W.2d Jones Smith, 71; ence, Mo.Sup., v. position was in a to relate the evi- 372 S.W.2d O’Neill Claypool, 129; damage dence Mo.Sup., prin- 341 Central and the fundamental S.W.2d dynamics, Lines, ciples thereby & v. help Southern Truck Inc. Westfall Truck, jury In Mo.App., to S.W.2d 841. understand what had occurred. GMC place, objection the second that the testi testimony As for the the witness mony would invade position in relation to vehicles objection. was cases not valid Numerous collision, roadway at the time of the testi- Paglino, have held. Mo. so See State mony appellant points objection- to which Sup., 613, [13]; Mann able travel of the related to direction of Hospital Clinic, Mo. Grim-Smith engaged they vehicles were still “while 606, 608; & South S.W.2d Central other, touching each each other Lines, ern Truck GMC Inc. v. Westfall separated.” The witness’s was Truck, Mo.App., 317 traveling near- sedan ly parallel westerly the road in a direction specific Turning matters then to at defendant’s station opinion been holds have should easterly angle degrees of five or in an six excluded, the the ve- position first is the objection No was made as to direction. at time hicles with relation to each other adequacy of the basis for this conclusion. engage- of initial contact and at maximum Appellant demon- attempt here does not ment, diagrams illustrated matters partic- prejudicial strate the effect of this opinion. stated The witness first and, is, finally, it at testimony, ular item of as to relative location defendant’s least to the direction of However, upon original vehicles contact. travel, statement with defendant’s consistent express before the witness was right swerving required opinion, him such an the trial court Insofar as wit- of the collision. The wit- state for his basis concerned, regard ness’s statement proceeded length ness the matters to state was, most, merely at the cumulative. They which he had will considered. them, detailed, but, upon hearing here be applied neither driver quite clearly trial court was warranted evidence at and that there no his brakes concluding properly the witness is, braking by vehicle the scene of either any express matter. likewise, merely cumulative corrobora- event, prejudice appellant from drivers, neither tive appear, de- inasmuch as answer does not ap- the brakes were of whom testified that deposition, pre- fendant’s statement plied. evidence, he was viously read was that into markings testimony about the swerving at the time of the colli- As for the sion, pavement, it not all could is clear that witness concluded. which what the
295 prin- accepted generally collision. with the consistent with connected have been testimony ciple expert admission photographic evidence However, the primarily discretionary matter of an the assistance clear that so particular It with case. is also to be noted connected marks not eliminating the ultimately in Hamre that have been the court concluded not be said collision opinion “since was inadmissible helpful. jury.” 209 it invaded prejudi- “particularly opinion finds If, cited S.W.2d 249. cases above point of the the location testimony cial” hold, obj ground ection that is an unsound testimony that impact, maximum evidence, opinion admission vehicle defendant’s wheel of left front equally judicial unsound basis for a mark, which was the “scrub” made court, mind, my To in the circum- trial opin- traffic. lane of case, properly stances of this concluded testimony amounted that this concludes ion opinion Judge the evidence which the impact. point as to erroneously Houser holds was admitted necessary permit at the jury arrive However, opinion no fault finds upon judgment which their ultimate concerning the the witness’s may be must rest. Automobile accidents cause, scrub and characteristics of nature days, matters of common occurrence these marks, including conclusion the witness’s ordinary jurors but that mean that does not maxi- product of the that a scrub mark is the so familiar with their characteristics The wit- vehicles. engagement mum consequences experts, applying that trained ex- a mark in the ness’s identification of physics dynamics, point laws of or cannot nor questioned, hibits as a scrub mark is not variety out a wide of factors the un- location is the witness’s trained observer does not see or consider. mark marks, including the scrub the various properly Given a trained is able who plaintiff’s side as one and one-half feet on opinions, to exhibit a sound basis for his evidence, practical This for all court, trial given case, in a should not be purposes, testimony by the wit- amounts to precluded exercising judgment point impact. ness as to the discretion in allowing the benefit of such event, assistance. any In testi- rigid “no mony point impact” rule should as to the range respectable There is a wide au applied. origin not be That rule had its thority support which would the admission Conger, dictum in Hamre v. 209 of the evidence here. Miller v. Pills See: case, pointed In that there out bury Company, 733; 33 Ill.2d 211 N.E.2d preliminary inquiry was no to determine Popp, Dudek v. 129 Mich. N.W.2d experience qualify him patrolman “to 393; Company Frank’s Plastering im- point to determine the Koenig, Cir., 257; 8th 341 F.2d Moss pact the debris.” from the location of Inc., Transport, D.C., Tenn., Associated S.W.2d 247. That was sufficient reason 335; Annotation, “Admissibility F.R.D. testimony. The admitting error or evidence as opin- remainder of the court’s discussion case,” collision motor vehicle accident impact was point of ion evidence A.L.R.2d 1048. However, wholly dictum dictum. my opinion, trial frequent repetition court did not err has now assumed judgment in- exclusionary quite should be affirmed. rigid rule status of