No. 14856
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
ALBERT PLOYHlR and JWRGARET PLOYHAR,
husband and wife,
Plaintiffs and Respondents,
BOARD OF TRUSTEES OF MISSOULA COUNTY
HIGH SCHOOL et al.,
Defendants and Appellants.
Appeal from: District Court of the Fourth Judicial District,
Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
For Appellants:
Garlington, Lohn and Robinson, Missoula, Montana
For Respondents:
Morrison Law Firm, Missoula, Montana
Skelton ardKnight, Missoula, Montana
Submitted on briefs: November 14, 1979
Decided : APR 2 2 198~
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The defendant, Board of Trustees of Missoula County
High School (hereinafter referred to as Board) appeals the
order of the Missoula County District Court, granting the
plaintiffs' motion for a new trial. The Board contends that
the trial court erroneously concluded that the expert testimony
of Arlyn Simms was not necessary and that his testimony pre-
judiced the plaintiffs' case.
On April 2 4 , 1975, the plaintiffs, Margaret and Albert
Ployhar commenced this action to recover damages for the death
of their son, Patrick. In September 1972, Patrick enrolled in
a heavy equipment operation class at Missoula Technical Center
(Tech). On April 30, 1973. students under the supervision of
Tech instructors were leveling ground with caterpillar tractors
and other heavy equipment used to teach class techniques. At
the time the accident occurred, Patrick, then 19 years old, was
placing stakes behind a caterpillar being operated by another
student. When the caterpillar reversed its direction, Patrick
was caught under the cat and crushed. He died as a result of
the accident.
The plaintiffs' amended complaint alleged that the Board
had negligently caused the decedent's death by failing to furnish
the caterpillar with a back up alarm, by directing the decedent
to place stakes in a dangerous area, and by permitting the
caterpillar to be operated by an inexperienced person without
proper supervision. At trial Arlyn Simms, an instructor at
Tech, who was supervising some of the students when the accident
occurred, testified for the plaintiffs.
During cross examination, counsel asked S i m s what in his
opinion was the cause of the accident. Simms replied that Pat
was at fault. On February 15, 1979, the jury returned a verdict
-2-
for the defendant. The plaintiffs made a motion for a new
trial which the trial court granted on March 23, 1979. On
April 9, 1979, the Board filed a notice of appeal of the
court order for a new trial.
The trial court has broad discretion in granting or
refusing to grant a new trial. Its order will not be disturbed
on appeal in the absence of a clear showing of a manifest
abuse of discretion. See Yerkich v. Opsta (1978), - Mont.
, 577 P.2d 857, 35 St.Rep. 465. This Court is especially
reluctant to reverse an order granting a new trial because
it gives both parties an equal chance to relitigate their
positions in a second trial. Tigh v. College Park Realty Co.
(1967), 149 Mont. 358, 427 P.2d 57. An order granting a new
trial will be upheld if it can be sustained on any of the
grounds contained in the order. Tigh, supra.
Here, the trial court concluded the plaintiff was entitled
to a new trial because Arlyn Simms' testimony was not necessary
to reconstruct the accident and he was a participant in the
events surrounding the accident. We conclude there was no
abuse of discretion in finding Simms' testimony was not necessary,
and thus, will discuss here only the former point contained in
the court order.
Simms gave his opinion as to the proximate cause of the
accident. Opinion evidence concerning the cause of an
accident is admissible only if the subject matter is beyond
the ordinary understanding of the jury. See Ziegler v.
Crofoot (1973), 213 Kan. 480, 516 P.2d 954. The cause of
the accident must be sufficiently complex to require explanation.
See McGuire v. Nelson (1975), 167 Mont. 188, 536 P.2d 768;
Massoni v. State Highway Commission (1974), 214 Kan. 844, 522 P.2d
973, 979. See also Dobkowski v. Lowe's, Inc. (Ill. C.A. 19741,
20 Ill.App.3d 275, 314 N.E.2d 623. Here, there was no need
for such testimony. The accident was relatively simple. It
-3-
involved a single tractor, and the actions of only two
individuals, the driver of the tractor and the accident
victim. At trial, an eyewitness gave his description of the
accident, and other witnesses testified concerning the
actions of the tractor driver and the decedent. This evidence
appears to be sufficient to allow the jury to make an independent
judgment as to the ultimate cause of the accident. Thus, we
conclude there was no abuse of discretion in deternining that
opinion testimony was not needed here.
The Board contends that Simms' testimony was not prejudicial
to the plaintiffs' case. However, the extent to which the
deceased's own actions caused the accident was obviously a
crucial part of the Board's defense. No other witnesses
gave their opinion as to the cause of the accident. These
circumstances support the trial court's conclusion that
Sirnrns' testimony was manifestly prejudicial to the plaintiff's
case.
We Concur:
Mr. J u s t i c e John Conway H a r r i s o n d i s s e n t i n g :
I must r e s p e c t f u l l y d i s s e n t t o t h e m a j o r i t y ' s o p i n i o n
i n t h i s matter. I f i n d t h a t th1.2 t r i a l c o u r t p r o p e r l y ad-
m i t t e d t h e t e s t i m o n y of Simms a s a n e x p e r t , and f o r t h a t
r e a s o n s h o u l d have s u s t a i n e d t h e v e r d i c t of t h e j u r y i n t h e
matter .
Under t h e Montana R u l e s of Evidence, r e c e n t l y a d o p t e d ,
s a i d r u l e s c a l l f o r t h e l i b e r a l u s e of e x p e r t t e s t i m o n y . As
n o t e d i n t h e o p i n i o n , t h e r u l e i n v o l v e d h e r e i s Rule 702,
which s t a t e s :
"If scientific, technical, o r other specialized
knowledge w i l l a s s i s t t h e t r i e r of f a c t t o under-
stand t h e evidence o r t o determine a f a c t i n
i s s u e , a w i t n e s s q u a l i f i e d a s a n e x p e r t by knowl-
edge, s k i l l , experience, t r a i n i n g , o r education,
may t e s t i f y t h e r e t o i n t h e form o f a n o p i n i o n o r
otherwise. "
A s n o t e d by a p p e l l a n t , two i s s u e s must be c o n s i d e r e d i n
implementing t h e above r u l e . F i r s t , whether t h e s u b j e c t of
t e s t i m o n y i s of s u c h a n a t u r e t h a t t h e t r i e r o f f a c t w i l l b e
a s s i s t e d by a n o t h e r ' s s p e c i a l i z e d knowledge; and s e c o n d ,
whether t h e proposed e x p e r t w i t n e s s i s s u f f i c i e n t l y q u a l i -
f ied to testify.
This Court has long held t h a t e x p e r t testimony should
b e a d m i t t e d whenever t h e i s s u e b e f o r e t h e j u r y c o n c e r n s a
s u b j e c t of such a n a t u r e t h a t t h e a v e r a g e p e r s o n c a n n o t
r e a c h a s i n t e l l i g e n t a c o n c l u s i o n a s o n e who h a s had e x p e r i -
ence with t h e s u b j e c t . S e e , Demarais v. Johnson ( 1 9 3 1 ) , 90
Ilont. 366, 370, 3 P.2d 283, 285. W note i n the present
e
case t h a t t h e j u r y c o n s i d e r e d t h e o p e r a t i o n of s e v e r a l
p i e c e s of heavy equipment o p e r a t e d by t h e s t u d e n t s . Spe-
c i f i c a l l y , t h e o p e r a t i o n under r e v i e w i n v o l v e d two cater-
p i l l a r s , one w i t h a r i p p e r and a mesh s c r e e n , two s c r a p e r s ,
a l o a d e r , a r o l l e r , and a motor g r a d e r . Assuming t h a t t h e
average person was familiar with these pieces of equipment
and their individual characteristics, the operation involved
in this case was further complicated by the fact that these
large machines were being operated by eighteen to twenty
students in an area about two-thirds the size of a football
field. Due to the close confines and the involvement of
students, the operating procedures were not like that of any
ordinary construction site. The fact that the students were
required to take weeks of classroom orientation and instruc-
tion before they were allowed to run the equipment exen~lifies
the nature of the operation.
In discussing the admissibility of expert testimony,
the federal courts have emphasized the importance of clear
understanding of facts. See, Miley v. Delta Marine Drilling
Company (5th Cir. 1973)r 473 F.2d 856. This case involved
the proper procedure for loading cargo ships. There the
court noted:
"'It must be remembered that the court is not
the judge of the quality of the evidence, nor
does the witness perform the function of a
juror--he can only contribute something to the
jury's information and if he can, he should be
permitted to do so. Especially is this true,
where as here the answer to the cruci&..Lques-
tion is necessarily left to those claiming spe-
cial knowledge based upon experience. . . I 11
,M
- 473 F.2d at 858, quoting Bratt v. Western
Airlines (10th Cir. 1946), 155 F.2d 850, 854.
As to Sirnms' testimony, we note that throughout the
case both attorneys relied on his testimony as an experi-
enced heavy equipment person. They relied on his testimony
(1) concerning the grade that was shot on the jobsite; (2)
the view to the rear from Marty Lidel's caterpillar; (3) the
general concerns of a caterpillar operator when backing up;
and, (4) the change in the motor noises as a caterpillar
backs up.
To u n d e r s t a n d t h e c o n c e r n s of t h e c a t e r p i l l a r d r i v e r
w h i l e b a c k i n g up, and t h e p r o c e d u r e and c o n c e r n of a l o n e
s t u d e n t c h e c k i n g a g r a d e i n a c o n g e s t e d area, it w a s n e c e s -
s a r y t o have t h e k i n d of t e s t i m o n y t h a t t h i s w i t n e s s p r o -
vided s o t h a t t h e average person could reach an i n t e l l i g e n t
u n d e r s t a n d i n g a s t o what took p l a c e . See, McGuire v . Nelson
( 1 9 7 5 ) , 167 Mont. 188, 536 P.2d 768. I t i s f o r t h i s reason
t h a t t h e e x p e r t t e s t i m o n y of t h e w i t n e s s Simms s h o u l d have
been c o n s i d e r e d and a d m i t t e d t o a s s i s t t h e t r i e r s of f a c t t o
u n d e r s t a n d t h e e v i d e n c e and t o d e t e r m i n e t h e f a c t i s s u e
b e f o r e them. S e e , Demarais v. Johnson, s u p r a , and McGuire
v . Nelson, s u p r a .
The second i s s u e p r e s e n t e d on Rule 702 i s whether Simms
was s u f f i c i e n t l y q u a l i f i e d t o t e s t i f y a s a n e x p e r t . Turning
t o t h e F e d e r a l R u l e s of Evidence which have been a d o p t e d
n e a r l y i n t o t o by t h e S t a t e of Montana, a proposed e x p e r t
w i t n e s s s h o u l d n o t be r e q u i r e d t o s a t i s f y a n o v e r l y narrow
t e s t o f h i s own q u a l i f i c a t i o n s . See Gardner v. G e n e r a l
Motors C o r p o r a t i o n ( 1 0 t h C i r . 1 9 7 4 ) , 507 F.2d 525, 528;
U n i t e d S t a t e s v . Barker ( 6 t h C i r . 1 9 7 7 ) , 553 F.2d 1013,
1025. An e x p e r t w i t n e s s may n o t have c e r t i f i c a t e s of t r a i n -
i n g o r membership i n p r o f e s s i o n a l o r g a n i z a t i o n s , b u t may
q u a l i f y a s a n e x p e r t based upon e x p e r i e n c e a l o n e . Tank v .
C.I.R. ( 6 t h C i r . 1 9 5 9 ) , 270 F.2d 477. I n Tank a s u p e r i n -
t e n d e n t of i n s t r u c t i o n and s a l e s w a s a l l o w e d t o t e s t i f y a s
a n e x p e r t a b o u t h i s a p p r a i s a l of c e r t a i n r e a l e s t a t e . The
Court s t a t e d :
". . . The a b s e n c e o f c e r t i f i c a t e s , memberships,
and t h e l i k e ... d o e s n o t i n and of i t s e l f
d e t r a c t from competency which o t h e r w i s e e x i s t s . "
270 F.2d a t 486.
In Montana we have adopted the federal rule which
allows witnesses to give expert testimony based on experi-
ence. Rule 702, Mont.R.Evid. It is well recognized in
Montana that the degree of the expert's qualifications
affects the weight, not the admissibility of his testimony.
See, ~esbitt City of Butte (1945), 118 Mont. 84, 163 P.2d
v.
251. The courts of this state have continually held that
expert testimony is admissible in explaining the cause of an
accident. Pachek v. Norton Concrete Co. (1972), 160 Mont.
16, 499 P.2d 766. In addition, the Montana courts have
allowed experts, qualified by experience, to testify on
causation. Waddell v. American Breeders Service, Inc.
(1973), 161 Mont. 221, 505 P.2d 417. In Waddell the son of
a rancher was allowed to testify that the cause of poor calf
drop spawned by artificial insemination was a supply of bad
semen. Even though the son had attended a school for insemi-
nators, he was not a licensed inseminator, he had not read
the entire manual, nor did he own a manual. Nevertheless,
the court allowed the son to testify because he had insemi-
nated a number of cows under supervision of the representa-
tive of the supplier. Thus, in Waddell the son's experience
was sufficient to allow testimony as to the cause of the
damage. Moreover, the court stated that the defendant
supplier of semen was not deprived of a fair trial since it
had an opportunity to cross-examine the witness. 505 P.2d
at 422.
The facts in Waddell are similar to those in the present
case. Here, witness Simrns has had a long association with
heavy equipment, their characteristics and dangers. ~ased
on this experience, he was asked if he had formed an opinion
as to the cause of the accident. The opposing party had an
opportunity to cross-examine, and in fact did, just as did
the opposing par-cy in Waddell.
In addition, the testimony of Simrns is cumulative only.
The deputy sheriff who made the official investigation
testified to substantially the same thing that Simms did and
came to the same conclusion.
Under the circumstances here, such cumulative evidence
does not prejudice the appellant and its introduction is
insufficient grounds to authorize a new trial. Pickett v.
Kyger (1968), 151 Mont. 87, 96-97, 439 P.2d 57. See also,
Morris v. Corcoran Pulpwood Co. (1970), 154 Mont. 468, 479,
465 P.2d 827 (dissenting opinion).
w
I concur in the foregoing dlssent.
Chief Justice