*1 аppeal. Langley affirmed on direct State, (1971) 256 Ind. Hollonguest pro was based
vides that waiver has oc whether such question litigat
curred is a which must be
ed in the trial court the State in defense petition post-conviction If relief. raised,
that defense has not been the trial appeal go
court and the court should direct
ly post-conviction to the merits of the claim counsel, spite fact
of ineffective
that the claim not made in a first and appeal. argument
direct Here there is no
made the State that such defense was level, I
made at the trial and therefore majority opinion decla
cannot concur
ration that a of the issue occurred. waiver agree
I do the resolution of however with against appellant.
the issue on its merits MARTIN, Appellant
Arlo D. (Defendant below), (Plaintiff ROBERTS,
Mary Appellee
below).
No. 684S249.
Supreme of Indiana. Court
June *2 Volkswagen body
"kit" mounted on a driving "bug" chassis. While down road, right blacktop rural Martin's tires dropped pavement. He off the side diago- and crossed the road overcorrected nally, veering The left rear *3 left. buggy snagged of the dune on wheel buggy telephone pole guy wire. The dune stopped, catapulting passen- abruptly gers causing the fiber- from vehicle body from the chassis. glass to detach injuries in the Roberts sustained severe against alleg- wreck and filed suit Martin ing engaged he willful driving. misconduct while wanton trial, At evidence was introduced showed that Martin's blood alcohol breathalyzer content measured .12% Martin to state defi machine. was unable wife, nitely going his how fast he was but vehicle, passenger also a in the testified going thirty-five that he around miles was per Trooper Indiana Ronald hour. State following Brown arrived at scene testify, over accident and was allowed buggy dune objection, that he believed the travelling sixty-five per miles hour at Trooper time of the accident. Brown's only testimony placing testimony was the speed legal limit of fif Martin's above the per hour at the time of the ty-five miles jury found for accident. The Roberts Jr., Spitzer, Phillip E. Herbert A. Ste $175,000 damages. awarded her Browne, Torrance, Spitzer, phenson, Herri- in that judgment trial court entered Marion, man, Stephenson, & for Browne subsequently denied Martin's amount and appellant. motion to correct errors. Sisson, Marion, appellee. Richard E. Trooper The trial court found Brown expert permit- qualified as an witness and PIVARNIK, Justice. opinion speed him to state his as to the ted comes to us on a Petition to This cause Martin's at the time of the acci- vehicle the Second District Court of Transfer from Appeals held that dent. Court brought by Appeals. Petition was Said by permit- trial court abused its discretion Mary Roberts Appellee-Plaintiff Roberts. ting testify expert about Brown to as Appellant Defendant Arlo originally sued regarding speed of Martin's his claiming damages person- for the D. Martin "failed to offer the vehicle because Brown riding in a injuries al she sustained while necessary expertise his in or evidence of buggy by Martin. dune driven formula, principle." with a calculation or 28, 1975, We now find that the Court of that on June The facts show erred in its determination of this issue pas- persons other Roberts and three accоrdingly of the Court buggy. The dune vacate sengers in Martin's dune fiberglass buggy consisted of a home-built grant Appeals, 452 N.E.2d
$99 transfer. proper We consider this issue and those at the accident scene is a area for appeal other issues raised the direct testimony since it is an area of expertise the Court of knowledge outside the of the av- which were not decid- ed them. The issues are as follows: erage juror. Officer Brown therefore had judge knowledge to show to the trial his 1. whether the trial court its dis- abused experience qualify the field to as an by allowing cretion introduction of ex- pert testimony on behalf of Roberts аs to expert. Brown testified that at the time of Martin operating this accident he was an officer with the his dune accident; buggy immediately prior engaged po- Indiana State Police in normal patrol investiga- lice duties such as by giving 2. whether the trial court erred tion of accidents and crimes. At the time 24; its final instruction trial, deputy Brown was a sheriff with 3. whether Roberts assumed the risk of primary similar duties. He received *4 injuries; her training investiga- in the field of accident supports 4. whether sufficient evidence tion at the Indiana Academy State Police judgment; the and Bloomington. training Said was conducted by 5. whether the amount awarded the by the Traffic Northwest Institute and in- verdict is excessive. 1) measuring cluded in: instruction skid marks; 2) evaluating physical at evidence I scene; 8) 4) determining speed; the deter- Petitioner Roberts contends that fault; 5) mining determining equipment Trooper qualified Brown was to state his failure; 6) determining the cause of an opinion by training, experience virtue of his accident; 7) making report. Trooper and general knowledge subject of the mat Brown further testified that he attended speed. ter in issue: vehicular Petitioner four-day annual refresher courses conduct- specific also contends that Brown's knowl by part ed the Indiana State Police. As of edge principles, of scientific formulas and training, "investigated" his Brown simulat- proper subject calculations was the of Training ed accidents. films were some- agree. cross-examination. We The rules times used and involved one car andetwo require expert of do evidence not that an accidents contrived to teach Brown how to knowledge spe witness demonstrate his of damage evaluate vehicle at an accident principles, cific scientific formulas or caleu- specifically taught scene. Brown was how qualified lations in order to be to state his to determine the cause of an accident opinion. expert's training, education speed how to estimate at the time of the experience provides the foundation Trooper accident. he Brown testified that requisite underlying which embraces the investigated 200 to 800 accidents knowledge. expert's specific knowl investigation at the time of his of the in- however, edge, goes weight to what the make stant accident had continued to give expert's testimony will to the investigations up automobile accident after cross-examination and the introduc trial, Appeals the time of The Court of opponent. tion of evidence the Moreovеr, specific knowledge the of an ex accordingly found that "Brown was trained pert to observe and record accident scenes is neither of the witness determinative qualifications expert nor witness' as of estimate, among order to determine or oth- opinion into the admission his evidence. things, er the at which vehicles were properly the Petitioner states law on traveling they before from data collided issue. damage such as skidmarks to vehi- Accordingly, question, acknowledged that cles." there is no as Appeals The Court of parties the ac Court of parties agreed in this case the knowledge, qualified that witness Brown speed by the determination of a vehicle's subject hand. examination of all facts and circumstances as an witness at ahead extending into shoulder culvert about Trooper also testified Brown it was return to the road but point He testimony. opinion for his factual basis abrupt return require the close as to at the scene of not so that he stated arrived apparent. Brown's was fifteen min- the road which approximately instant accident tread on the county the lack of met a it occurred and utes after already extent due to to some trooper right who rear tire was officer аnd another skidding at the 120 feet across the Martin process there. Brown observed strong but, part, of alcohol the tread odor for the most roadway scene and noticed missing the investi- the acci- He assisted with before probably on his breath. had been facts and circum- From all of these dent. the seene and by taking pictures of gation path of the vehicle. of the stances, Trooper measurements Brown stated roadway the conditions He observed traveling sixty-five vehicle ran off the car first where and determined the time it ran off per at miles hour also Trooper Caward road. He and road. had traveled that the vehicle determined found The Court feet a distance of 159 grassy berm specifi wanting. They Brown's then Brown regaining the road. before given had not a formu cally found that he in a "buggy" traveled that the determined la, principle calculation or the road and 120 feet across diagonal line deter vehicle could be speed of Martin's He to rest. point where it came unique taking into account mined length type of skidmarks observed *5 fact that vehicle and the of the structure determined pavement the and apparent on apparently re the vehicle damage to the guy wire impact was between that the opposed to the forces as from tensile sulted the vehicle which the rear wheel of in an usually manifest compressive forces com- fiberglass body to almost the caused The of collision. Court automobile pieces of rip-off the frame. Minor pletely requisite formula that the hypothesized approximately lying about debris were such as the require information might loca- of the vehicle's twenty feet forward vehicle, weight the of the weight and load passengers, one of the tion. The bodies manner which occupant, and the each of twenty feet dead, to estimated be were held steering and rеar seats the wheel distance or about the same from the vehicle might include A formula also position. in was steering The wheel as the debris. fiberglass or other factors of properties the where opposite in the direction bent factual situation. particular this unique to it was front normally positioned so that go these factors We first observe This, of of the vehicle. front wheels of the weight Trooper of Brown's more to the impact course, the force of indicated rather than to his testimony subject on made steering presumably column considering fact that he competency abruptly body when the vehicle the driver's on the expert witness qualified as an had the vehicle were The of stopped. brakes appear Secondly, it would subject. general operating to and found be examined may be considerations that these additional check the impossible to but it was condition it but is valid for a determination because steering mechanism vehicle's say province to necessarily within our not further damage it. Brown to the extreme along with they be considered must by him and his taken photographs offered gave. There Trooper Brown factors general of the vehicle associates principles many formulas are doubtless the frame He testified about scene. other in this field experts use severely twisted. was vehicle which opinions. The ultimate condition and at their in driveable to arrive was not vehicle factors, formulas or of which determination rear tire. right tread on there was no singly or necessary, either ob- was no that there are testified calculations He further other, an to form each conjunction with to return to causing the car struction knowledge There was abruptly as it did. expert opinion is within roadway as
901 judgment and, expert again, source, is a able appear as to make it subject approаched which can be and exam value, is some he is enti- ined in the by bring cross-examination or tled testify, leaving to court, to the trial ing expert forward other witnesses. This in the discretion, exercise of a sound well-stated Justice Prentice in Tra right say to when such knowledge is shown, and Indemnity (1982) velers Co. v. Armstrong, right say Ind., There, expert 349. worth; what and, inas all witness was a experienced ap banker discretion, other cases of this court will praising real estate. The banker was review the action the trial only court expert called as an give witness to ap when that clearly appears discretion praisal value for a certain residence. His have (emphasis added). been abused." testimony very disclosed that he famil State, (1901) 517, Isenhour v. 528, 157 Ind. iar with real estate values and was familiar 40, 62 N.E. The Court of has property with the in issue but apparently said: was unaware that remodeling extensive "There requisites are two for the admis the interior of the recently residence expert sion of testimony. subject been may done which have influenced its matter of testimony beyond must be actual value. The personal banker's knowl the understanding layman of a they so edge of the property preceded its remodel cannot presented assess the evidence ing. рermitted The trial court the banker's draw an Also, informed conclusion. and, review, Justice Prentice witness must have sufficient skill and stated: knowledge in the field to aid the trier of competency "The of a testify witness to fact in its search for the truth. Davis v. as an is a matter to be determined (1979) Schneider Ind.App., 395 N.E.2d by the trial judge subject court to his 283." broad State, discretion. Lineback Deen, (1982) Underhill Ind.App., 442 (1973) 636; 260 Ind. Tyl N.E.2d 1136, 1139; N.E.2d See also Cromer v. State, (1968) er v. 250 Ind. Bridenbaugh, 188 Ind. 123 N.E. N.E.2d 815. His competency is to be *6 115, reh. denied. Where a trial court is by determined knowledge his the sub of presented with a witness who has knowl
ject
generally,
matter
whereas his
edge
experience
in and
with
subject
the
knоwledge
specific
the
subject
of
of
matter before the court and
inquiry goes to
weight
jury
to be accord
would
therefrom,
benefit
the witness
opinion.
ed to
should be
We see no error in
permitted
testify
to
as to his
having permitted
Court's
leav
the witness
ing
the extent
knowledge
of his
experi
to
testify, although
credibility
of his
opinion might
ence to
subject
any contrary
be
cross-examination and
to considerable
scrutiny."
(emphasis added).
by
opponent.
evidence
State,
Jones v.
(1981) Ind.,
128;
425 N.E.2d
Lineback v.
Travelers,
more, opportunity a skid were tire marks caused sonable "break determine a properly utilized to vehicle; person of ordi- whether circumstances, going speed that a car speed prudence, or the under the nary out" or begin to slide through a curve would to continue have refused would (1979) Ind.App. Vinnedge, 181 skid. Sili the vehicle." have abandoned would The Court of N.E.2d 251. 393 24 read: Instruction damages photographs of held that also has Mary Roberts was mere fact that "The mute evidence vehicles sustained Martin, Defendant, Arlo D. riding with and evi speed of an automobile to the as incurred risk of mean that she does not failure to lookout of the driver's dence death, guilty injury or or was under reasonable have his automobile of her own." wanton misconduct (1970) Reneer, 148 Ind. Morgan v. control. nor do we ob Appellant does not claim denied Trans. App. these instructions that all three of serve all of agree Petitioner We improper statement together are an taken singularly or which have been these factors In regard to incurred risk. of the law with recognized as indicia of collectively complete fact, proper and they appear to be indicia and these present this case are objection subject. Appellant's first on the adequate form an other facts together with it is because instruction is not valid Troop opinion. Trooper Brown's basis riding in a vehicle does the mere true regarding his both Brown's er The neces incurred risk. not constitute facts he qualification as of incurred risk are sary elements speed determination to make his used knоwl riding in have person the vehicle justify the trial sufficient to this case were appreciate question, edge danger permitting him to state his judge in himself voluntarily expose choose it and by his of discretion and there was no abuse thereby incurring danger herself to such doing so. v. Brew incident thereto. Gerrish the risk II Ap er, (1979) Ind.App., N.E.2d 1298. the instruction objection to pellant's second Martin Respondent-Appellant merit since the elements also without is appeal trial court erred that the claimed are included of incurred risk the doctrine 24 to the final instruction by giving its were read 22 and 23 which instructions in specifically claims that jury. Appellant together with instruction the trial court 1) 24: misstated the law because struction elementary that It well-established and riding in a vehicle implied that mere it viewed as risk; 2) must be instructions incurred cannot constitute *7 with, harmony in confusing it did not whole and construed misleading and because a incurred risk. elements of necessary any include the other and it is not each other appli final in 24 one of three all the law Instruction instruction to contain one (1983) by State, the trial court which given Hughes structions to the case. cable In of incurred risk. with the issue dealt Furthermore, Ind., 22 read: in jury struction in final trial court instructed danger, un- in the case person of a 2 that all of the law а knows struction "When voluntari- the risk involved and derstands any single instruction was not embodied danger or to such ly exposes himself consider the instruc they that should them voluntarily joins in or as- as a whole and construe guest tions when a by opera- misconduct to wanton sents therefore harmony with each other. We vehicle, person is said motor tor of a this issue. find no error on injury." the risk' of have 'incurred III read: 28 Instruction the de Appellant also claimed that in- determining plaintiff "In whether as a established of incurred risk was risk, may fense you consider curred the
903
matter of law because the
evidence showed on the
occupants
was strong
buggy
as thе
voluntarily joined
Roberts
in the ven
traveled down the highway. There was
ture which resulted in the
causing
accident
evidence,
therefore,
that Roberts was not
injuries.
her
proof
Martin's burden of
fully
able to
determine the conduct of Mar
trial,
issue was to
by
establish at
a
tin which would have alerted her to his
preponderance
evidence,
of the
that Rob
intoxicated condition or to his otherwise
knowledge
erts had
of a risk and that she
improper driving. An inference of con
danger
understood the
voluntarily
ex
structive knowledge is not sufficient to es
posed herself
appeal,
to it. On
Martin's
tablish an assumption of risk as a matter
burden is tо establish that
the evidence of law. Constructive knowledge is not a
Roberts,
most favorable to
together with
part of the doctrine.
It rather must be
inferences,
all reasonable
conclusively es
shown that there was an actual knowledge
of,
tablished that
understood,
she knew
part
on the
plaintiff
as to the risk
given danger
voluntarily
that she
involved and an assumption of that risk
exposed herself
danger.
to that
Ind.R. with such
knowledge.
actual
Kroger
See
9.1(A) places
Tr.P.
pleading
burden of
Haun,
(1978)
Co. v.
Ind.App. 403,
proving
the defense of incurred risk
N.E.2d
reh. denied. The Court of
upon Defendant-Appellant Martin.
Plain Appeals has stated:
tiff-Appеllee Roberts now claims that Mar
very
"...
essence of incurred risk is
tin does
not cite
establishing
evidence
conscious,
deliberate and intentional
that Roberts had
knowledge
actual
of Mar
embarkation
a course of conduct
degree
intoxication,
tin's
that Roberts
knowledge
circumstances,
had actual knowledge
driving
that Martin's
ability was substantially impaired or that
Gerrish,
Roberts also knew that Martin was under Moore Moriarty, influence of alcohol in violation of statute. Ind.App., 415 N.E.2d question 779. The whether Rob contends, therefore, Roberts that there was question presented of fact erts jury incurred the injuries risk of her was an about the defense of incurred risk and that issue to be decided jury as trier such defense was not established as a mat fact and we find no error on this issue. ter of law testimony Roberts' singular or combined of all of IV the other witnesses the case. Roberts Martin next claims that there was insuf- further contends that the properly ficient evidence support jury's ver- instructed on that issue and properly deter dict. specifically He asserts that there is adversely mined the issue to Martin. insufficient evidence to finding sustain a
Although there is conflict the willful or wanton misconduct and that his point, evidence on this we agree do not judgment motion for on the evidence with Martin that there a showing here should granted by have been the trial court that Roberts assumed the risk as a matter grounds. on those It is his view that of law. points Roberts out the evi jury's verdict and the trial judg- court's dence shows that Roberts and Martin were ment contrary are to the evidence. together with shortly others from a time leaving City guest before This is a passenger Gas VFW until the case *8 governed and as such is provision the just of accident over one During hour later. time, § Statute, Roberts the Indiana observed Martin drink Guest Ind.Code 9-3- Upland (Burns 1980), one beer at 3-1 requires and one beer at which Mat the show Furthermore, thews. ing there of was wanton or willful misconduсt on the that while occupant part Roberts was an of the of the motor operator causing vehicle rear seat of the buggy, dune damage. «Roberts, she was bent the loss and guest, as a had the proving burden of over with her face in her hands because the injuries that her were caused the wanton or willfulmis dune buggy open was and the velocity wind 904 occupants and front, throw the to the mo seat the Martin, operator of the of conduct twenty feet vehicle of the parts various hav judgment The and verdict
tor vehicle. fiber the vehicle's Roberts, appel and demolish a field of into favor ing been entered and the еvidence frame. bending to the is directed body late review while glass Martin was favorable that most evidence inferences also was reasonable There the sufficiency per of reviewing the in a 55 mile per hour In miles driving her. 65 to case, decide will we in a civil find that there now evidence We hour zone. of evidence is substantial there whether they which jury from to the presented facts trial court's the supporting value probative Martin that reasonably determine could weigh the evidence neither We judgment. miscon and wanton of willful guilty was but credibility of witnesses judge nor insufficiency of no find duct. We therefore most favorable only the evidence consider matter of law. as a here evidence reasonable along with all judgment Only if therefrom. to drawn be inferences y or evidence evidence a lack of there is can be drawn inference a reasonable which claims Appellant Martin Finally, plaintiff's of the element an essential trial jury's verdict that court's. F.D. court. a trial reverse we claim will amount an excessive is for judgment Sandock, Co., Inc. Borkholder points out that Roberts damages. Appellee 567; Fort Magnavox Ind., 413 N.E.2d the asser controversy here over is no there v. Ben Union Employees Credit Wayne direct and were the injuries that her tion 155, N.E.2d 331 Ind.App. son, (1975) 165 There of the accident. result proximate 46, reh. denied. severity controversy as to the is no also intoxica injuries held that she suf has This Court permanency and weay- speed, by excessive accompanied uncontroverted tion is the evidence fered and highway phys her pain and side of ing from one continuous that she parties constitutes misconduct The similar limited. capacity other or is now ical Hubble misconduct. willful medical hospital and wanton stipulated 891; 202, N.E.2d Brown, (1949) Ind. 84 227 treatment Roberts' incurred bills Clemons, v. Estate also Oliver see $29,099.65. was The evidence totalled care N.E.2d Ind.App. 236 (1968) 142 wages that she lost uncontradicted further presented to facts denied. trans. in the injuries of her result as a direct that Martin case showed in this $9,548.00. amount content, degree a alcohol .12 blood 28, on June accident occurred This impair Martin's sufficient intoxication of the the scene taken from was Roberts statutory definition. driving ability Hospital where to Marion General accident drove Martin further showed evidence so until remained was unconscious she a roadway in such dry straight, along a 3rd, she recalled when 2nd or August vehicle of his right wheels that the manner At time hospital. awakening at and, roadway of the paved portion left a intraveinously being fed was she brakes, skidded application of in her throat tracheotomy tube turned the Martin where point a feet She was breathing machine. to a attached paved sharply and reentered too wheels her feet. sandbags around immobilized no obstruc There was road. of the portion 9th, left of the fractures had suffered She After sharp turn. required tion urinary ribs, blad- ruptured 11th 10th and road, it skidded on the was back the vehicle spleen, a rupture of the der, a traumatic addi line an center diagonally across larger lacer- two pelvis, severely fractured sever guy wire struck feet and tional fat severe thigh and the left ations on left with the road away from the al feet ruptured lungs. Roberts' in the embolisms of the The force vehicle. rear wheel her repaired surgically forward great as to bend bladder so impact was surgically removed. spleen was ruptured column, back throw the steering vehicle's *9 pulmonary The during embolisms suffered improve not cosmetically. It was testified hospitalization required her tracheotomy expectancy that her life at the time of the awith tube inserted in the base of her years. accident was 30.86 operative report neck. The indicated that a reviewing The basis for question fracture of the superior lеft inferior and damages excessive discussed public against rami was seen the bladder. Court of as follows: A catheter was inserted and Roberts was "In determining whether the amount of transfused with three units of whole blood. excessive, an award is the reviewing An additional transfusion was later neces- may only court consider the evidence 17, 1975, sary. August On it was neces- most favorable to the award and cannot sary apply hip traction because of her substitute its view proper as to the pain and traction through Sep- continued amount of an jury's award for the view 9, tember 1975. At the time when Roberts clearly appears unless it that the аmount condition, first recalled her she was immo- large awarded is so it cannot be ex- hospital bilized her bed big and had a plained by any hypothesis reasonable abdomen, big sear on her sear on her prejudice, other passion, than partially leg big lower and a scab on hip. her She (sic), corruption or improper other consid- spent forty-nine days in the intensive care eration." unit Hospital of Marion General and was Low, (1979) 372, McCue v. Ind.App. hospital removed to another room before 1162, 1165, Trans. denied. discharge her September on Considering the evidence jury before the Upon discharge hospital, hеr from the she damages Roberts suffered and on her was unable to care for herself and was past, present pain and future and suffer taken to her Mother's home where she con- ing, jury we do not find that award of recuperation tinued her and was able to $175,000.00 jury prejudice, was based on only walk with the aid of a walker. She partiality corruption. We also do not later hospital returned to the surgi- for the jury find that misap misunderstood or implantation cal hip of an artificial socket plied the evidence or that their award is required a day hospitaliza- which twelve improper based consideration of an engagе tion. She continued to physical liability element such as insurance. therapy and exercise which she testified parameters award is within the of the evi performed great pain, with and final- dence and judg we will not substitute our ly progressed walking with a cane. She ment for that of the as to reasonable physical still has limited movement and an compensation for Roberts. arthritic injuries condition due to her which Stauffer Lothamer, Ind.App., 419 N.E.2d pain. causes orthopaedic constant Her sur- trans. denied. geon replacement testified that a of her hip artificial socket anticipated is to be granted, Transfer years. within fiftеen or sixteen He further Court of is ordered vacated and testified that there are distinct hazards of the trial things court is all affirmed. potential complications future involving the hip joint including artificial GIVAN, C.J., HUNTER, J., concur. infection injury. In the event of complica- future DeBRULER, J., dissents with tions, prosthesis would be removed and PRENTICE, J., which concurs. Roberts would have hip a "flail" DeBRULER, Justice, dissenting. require heavy would her to walk on scar respectfully genius tissue the aid of a I with cane or crutches dissent. A at math hip joint. without the benefit of a cannot deduce the area of a circle without Not- withstanding, knowing length she was able to return of its radius. In like Trooper now able to walk manner Brown could not have de- in early work 1977 and is slight limp. without assistance with a buggy duced the of this dune tracheotomy highly sear is degree accuracy visible and will reasonable two *10 to raise unable majority, unlike armed first, not he. was because
reasons: dune record from this evaluative inference reasonable any formula or with distance for a skidded buggy may measurements have plug process which his My roadway. second, as it traversed scene, 120 feet and at observations and new neces for a patently remand not evaluate and he did is to reverse because vote observations, and sary measurements trial. situation, including the char unique in this would taught guy wire which acter of PRENTICE, concurs. J. bow, the string of a like the have behaved tires, rear front and dissimilar open fiber light and manner which time of at the had detached body glass chas foreign made from the small
impact traffic unusual special and There are sis. special are just as there this such as
cases cases, require medical and unusual investigators of traffic attention ALMODOVAR, Appellant, S. Wilfredo training, skill and heightened with doctors my spoke mind This Court experience. Ins. Co. subject in York New this Life Indiana, Appellee. STATE 404, 425, Kuhlenschmidt, (1941) 218 Ind. No. 1083 S 348-349, it said: when N.E.2d subject us that as seems to "And it of Indiana. Supreme Court technical, in- more inquiry becomes 22,1984. June court, scientific, with- volved, the trial is the de- discretion reasonable in whose of a wit- qualifications termination care
ness, greater exercise should inis offered witness
ascertaining that an ques- light on the to throw position
tion." this case trial that at the evident
It became proffered puzzle with which
posed a deal, qualified not expert witness taken have been opinion should his and that | jury. away leav- content
Ordinarily I would be credibility of weight and
ing the trier of fact
of an witness cross-examination, process if the witness here not dissent would in mo- buggy the dune
actually observed observations
tion, he made or had upon which at the seene
measurements been reasonably have might I pressed here am But grounded. incomplete identifi- by the
opposite position matter factual of relevant
cation to demonstrate inability of the witness method systematic accepted
he used an fi- And speed. opinion on reaching his am, case, I I have studied
nally, as