No. 87-202
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
DWIGHT DOUGLAS SMITH,
Plaintiff and Appellant,
-vs-
MARLENE RORVIK,
Defendant and Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Channing J. Hartelius; Hartelius, Ferguson & Baker,
Great Falls, Montana
For Respondent:
Robert Terrazas; Worden, Thane & Haines, Missoula,
Montana
Submitted on Briefs: Nov. 24, 1987
Decided: March 9, 1988
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Dwight Douglas Smith appeals from a verdict and judgment
in favor of defendant Marlene Rorvik in the District Court,
Twentieth Judicial District, Lake County, arising out of a
car-pedestrian collision which occurred on Airport Road, near
St. Ignatius on June 13, 1984.
On consideration, we reverse and remand for a new trial.
We examine the following issues on appeal:
1. The propriety of the opinion evidence of the highway
patrol officer.
2. Proper jury instructions on the statutory duty of a
driver relating to pedestrians.
3. Proper instructions respecting warning devices for
disabled vehicles.
4. Whether counsel may argue to the jury on the legal
effect of the application of the comparative negligence
statute.
On June 13, 1984, plaintiff Smith was operating a
front-end loader on a public highway. Because the engine of
the loader overheated, he parked the vehicle on the right
side of the east bound lane of the roadway so that he could
obtain water from a nearby irrigation ditch. As parked, his
loader occupied 7 feet 6 inches of the 22 foot total paved
width of the roadway.
Randy Monroe was following Smith in a truck. He pulled
his truck off to the right side of the roadway and came to a
stop behind the loader. Monroe activated his emergency
flashers and then attempted to assist Smith. Neither Smith
nor Monroe placed any emergency warning devices on the
roadway. Smith climbed up on the loader's tire in order to
pour two pop bottles of water into the radiator of the
vehicle. He was injured shortly thereafter.
Marlene Rorvik was driving an automobile east on the
same roadway. She testified that she saw the loader and the
truck parked on the right side of the roadway. She did not
see any flashing lights but she did see a man on the loader.
As she was passing, her vehicle struck Smith, who was then on
the pavement.
Rorvik testified that Smith jumped from the loader tire
onto the roadway. Smith contended that he was struck as he
walked from behind the loader. Under either version, Smith
was on the roadway when struck.
A Montana highway patrol officer investigated the
accident, arriving at the accident scene approximately 20
minutes after the occurrence. Smith had already been
transported to the hospital in an ambulance, and Monroe had
moved the truck, located behind the loader. No citations for
criminal traffic violations were issued by the highway
patrolman to either party.
Smith filed an action against the defendant driver in
the Lake County District Court, seeking damages for the
personal injuries he sustained as a result of a
pedestrian-car collision.
THE TESTIMONY OF THE HIGHWAY PATROLMAN
Far in advance of the trial, the highway patrolman was
interviewed and deposed by counsel for Smith. The patrolman
was also interviewed by defendant's counsel and the patrolman
accompanied counsel for the defendant to the scene of the
occurrence prior to the trial. The patrolman was named as a
witness by both parties but he was not named as an expert
witness by Rorvik's counsel in response to Smith's
interrogatories. Smith contends it was reversible error for
the trial court to permit the patrolman to testify as an
expert in that situation.
The patrolman testified that he was notified of the
accident at 7:00 p.m. on that date and reached the scene
about 20 minutes later. As he came to the accident scene, he
passed an ambulance which was already transporting Smith to
the hospital in St. Ignatius. He observed the loader in the
eastbound half of the highway with all four wheels on the
pavement. He measured the loader and determined the distance
that it projected into the roadway.
The patrolman interviewed Marlene Rorvik at the scene.
She told him she had begun to proceed around the loader on
the road when a person jumped from the loader and was struck
by her car. The patrolman talked to other witnesses at the
scene. Randy Monroe said he had not seen the accident since
he had his back turned. Monroe was in a field looking for a
container for water. The patrolman also talked to Lynn
Birthmark and Steve Weingart, the driver and passenger in a
vehicle following Marlene Rorvik, who told him that they had
been traveling at approximately 3 5 miles per hour. They did
not tell him anything about her speed, the point of impact,
or the point of the highway where Smith landed after the
collision. The patrolman noted on his investigation report
that the speed limit at the time of the accident would have
been 5 5 miles per hour. (The actual speed limit is disputed;
it was probably 3 5 miles per hour, though no witness,
including the highway patrolman, saw any signs respecting
that speed limit. A county road supervisor testified that to
his knowledge such 3 5 miles per hour signs were posted on the
date of the accident. )
In direct examination, the patrolman stated that he had
been a highway patrolman for 16 years and that he
investigated approximately 1600 accidents in that time. He
had attended approximately 80 hours of classroom training on
accident investigation. He had testified as an opinion
witness about the cause of accidents in other cases.
The patrolman testified that on arriving at the accident
scene, he observed the position of the loader parked on the
highway, measured its bucket which extended 7 feet 6 inches
into the highway surface, measured the total width of the
highway, and talked to Marlene Rorvik and witnesses Lynn
Birthmark and Steve Weingard as well as Randy Monroe. He did
not ever talk to the plaintiff Dwight Smith. He determined
that there were no flares or other warning devices set out
behind or in front of the Smith vehicle. He determined what
Smith had done prior to the impact by the statements he
received from Marlene Rorvik. Before the patrolman arrived,
Randy Monroe had moved the truck from its position behind the
loader. The patrolman did not learn of the presence of the
truck behind the loader until days later.
On cross-examination, the patrolman admitted that he
assumed the speed limit was 55 miles per hour because no
speed limit sign was posted; it was his opinion that Smith
did not properly display flags and flares at the scene, and
that he had failed to yield the right of way to a vehicle as
a pedestrian; and he did not know when he formed his opinion
that a truck had been parked behind the front end loader so
that Rorvik had to pass the truck before she could pass the
loader. It also developed on cross-examination that the
patrolman had thought, from the position of the shovel on the
loader, that it was going in the other direction and was
parked on the wrong side of the road. There were no
skidmarks and the patrolman did not determine the stopping
distance of the Rorvik vehicle from the point of impact with
the pedestrian to the place where the vehicle had stopped; he
did not determine nor measure the distance that Smith had
been thrown by the impact from the vehicle from the point of
impact to the place where he came to rest; his discussions
with Randy Monroe and Lynn Birthmark were brief, and he
stated that they did not volunteer any information to him.
He testified that the damage to the Rorvik vehicle was as
portrayed in Exhibit C, a photograph which shows scuff marks
of some sort on the bumper below and to the right of the left
headlight and some scuff marks on the front part of the
bonnet or hood of the Rorvik vehicle.
In his direct examination, the patrolman testified as
follows:
Q. Now, Officer, based upon your investigation of
the accident, why didn't you cite Ms. Rorvik for
speeding? A. I had no evidence to support the
fact that she was speeding.
Q. Why didn't you cite her for careless driving?
A. I had no evidence to prove she was driving
carelessly.
Q. Why didn't you cite her for driving in an
unsafe and imprudent manner? A. I felt she was
driving safe at the time.
9 . Why didn't you cite her for failure to reduce
her speed in the face of a potentially hazardous
situation? A. I feel she did.
Q. Why didn't you cite her for failing to pass
safely? A. I feel she was passing safely.
Q. Why didn't you cite her for failing to exercise
due care to avoid colliding with a pedestrian? A.
I feel that she did.
Q. Why didn't you cite her for being negligent or
for violation of a basic rule? A. She was not
negligent and she violated no basic rule.
MR. RYAN: Your Honor, excuse me, I'm going to move
to strike the witness' answer--the witness1 answer
he volunteered about negligence--on the grounds
it's a legal conclusion, speculative and should not
have been given that way.
THE COURT: Overruled, the answer will stand.
Those questions and the answers given constitute
prejudicial error against the plaintiff Smith. The trial
court should have sustained the objection to the reference
about negligence. The questions were objectionable, even
though the patrolman was testifying as an expert. The
questions were objectionable at least on the following
grounds : 1) they were irrelevant; 2) they were
argumentative in form; 3) they described as crimes things
which are not crimes; 4) they called not for objective
evidence but for the mental conclusions of the witness; and,
5) they were hearsay.
Though of first impression in this state (but see
O'Brien, infra) , it is clear in the law that admitting
testimony of an officer that he made no arrest following a
collision is error. Danner v. Walters (Neb. 1951), 48 N.W.2d
635. Admitting such testimony is prejudicial error. Allen
v. Ellis (Kan. 1963), 380 P.2d 408. In Ferreira v. General
Motors Corporation (Hawaii App. 1983), 657 P.2d 1066, 1069,
it is stated: "If evidence of an acquittal is inadmissible,
a fortiori, evidence of the issuance or nonissuance of a
traffic citation is likewise inadmissible." In Underwood v.
Butler (Ga. App. 1983), 304 S.E.2d 729, 166 Ga. App. 527,
Judge Birdsong noted:
. . . That the officer did not issue appellant a
criminal citation is no more relevant and
admissible in a civil trial than it would be if the
citation had been issued and the appellant found
not guilty. The elements of proof in civil and
criminal trials are decidedly different. (Citing a
case.) Evidence that the officer did not issue a
criminal citation to the appellant is generally
irrelevant to the question of negligence in a civil
trial. This rule is not changed by the fact that
the officer had earlier, without objection by the
appellant, been permitted to express his opinion as
to her negligence.
304 S.E.2d at 731.
In this case, the plaintiff had moved - limine for an
in
order preventing the patrolman from testifying as an expert
since he was not listed by the defendant as an expert in
pretrial discovery. The District Court denied this motion.
The motion, however, was not denied until the afternoon of
the first day of trial after the jury had been selected on
March 30, 1987. Smith's counsel had taken the deposition of
the patrolman on November 8, 1985. At that time, the
patrolman testified that he did not consider himself an
accident reconstruction expert, and that the opinions he was
rendering in the deposition were from a criminal standpoint
and not from a civil standpoint. Upon proper requests by
Smith through interrogatories that Rorvik identify any expert
witnesses, it became the duty of Rorvik to identify those
witnesses, including the highway patrolman before trial.
Sanders v. Mt. Haggin Livestock Company (19721, 160 Mont. 73,
500 P.2d 397; Smith v. Babcock (1971), 157 Mont. 81, 482 P.2d
1014. (A proper disclosure by Rorvik of the intention to
call the patrolman as an expert on civil liability would have
warned Smith and led to probable further motions to the court
respecting the foundation for the patrolman's testimony as an
expert.) In this case, the patrolman had spoken only to
Rorvik, and at trial announced that he had based his opinion
on what Rorvik had told him, plus what he had learned from
other witnesses at the time of his investigation. However,
no other eye witness at the scene could identify how the
collision occurred. The only two witnesses to the actual
circumstances of the collision were Rorvik on the one hand
and Smith on the other. If the information obtained by the
patrolman through his investigation were insufficient for him
to form an opinion as an expert, the lack of foundation to
qualify him for his opinion would be an issue for
determination. See Tacke v. Vermeer Mfg. (Mont. 1986), 713
P.2d 527, 43 St.Rep. 123. We have held that where the
patrolman had inadequate information to form an opinion as to
speed, that he should not be asked to testify thereon,
O'Brien v. Great Northern Railway (1965), 145 Mont. 13, 400
P.2d 634:
On direct and cross-examination the witness
admitted that he was not an eye witness to the
accident, having arrived some five minutes
thereafter; that due to the impact, there was no
way to determine the speed of the vehicle from the
skidmarks on the highway; and, that he was not
familiar with stopping distances in terms of speed.
Shortly thereafter, in response to a question of
whether there was any evidence of violation of the
speed limit by the decedent, he replied, over
appellant's objection, "I don't know whether I
could judge and give a conclusive answer to that or
not. In my own mind, I don't think the man was
exceeding the speed limit." We think that the
witness' answer was predicated on pure speculation
and conjecture; the appellant's objection that the
question was without proper foundation and called
for a conclusion was valid and should have been
sustained. In view of the fact that the witness
was a highway patrolman testifying as an expert
witness, the testimony given by him might have been
accorded considerable weight by the jury, and,
inasmuch as it tended to establish the freedom of
the decedent from contributory negligence, it was
unduly prejudicial to the appellant's case and
therefore reversible error to admit it.
145 Mont. at 19-20, 400 P.2d at 638.
INSTRUCTIONS RELATING TO VEHICLE-PEDESTRIAN COLLISION
On the subject of the relative duties between a
pedestrian on a highway and a driver approaching such a
pedestrian, the District Court gave the following
instructions:
INSTRUCTION NO. 18
A Montana statute provides a person operating
or driving a vehicle of any character on a public
highway of this state shall drive it in a careful
and prudent manner, and at a rate of speed no
greater than is reasonable and proper under the
conditions existing at the point of operation,
taking into account the amount and character of
traffic, weight of vehicle, grade and width of
highway, condition of surface, and freedom of
obstruction to view ahead, and he shall drive it so
as not to unduly or unreasonable [sic] endanger the
life, limb, property, or other rights of a person
entitled to the use of the street or highway.
INSTRUCTION NO. 19
A Montana statute provides that a person
operating or driving a vehicle of any character on
a public highway of this state shall drive it in a
careful and prudent manner so as not to unduly or
unreasonably endanger the life, limb, property, or
other rights of a person entitled to the use of the
street or highway.
INSTRUCTION NO. 2 0
A Montana statute provides that every
pedestrian crossing a roadway at any point other
than within a marked crosswalk or within an
unmarked crosswalk at an intersection shall yield
the right-of-way to all vehicles upon the roadway.
Notwithstanding the foregoing provision, every
driver of a vehicle shall exercise due care to
avoid colliding with any pedestrian upon any
roadway and shall give warning by sounding the horn
when necessary.
INSTRUCTION NO. 2 2
It is the duty of every person using a public
street or highway, whether as a pedestrian or as a
driver of a vehicle, to exercise ordinary care at
all times to avoid placing himself or others in
danger and to use like care to avoid an accident
from which an injury might result.
In addition, Smith's counsel requested the District
Court to give the following instruction:
A Montana statute provides that a driver of a
vehicle shall drive at an appropriate reduced speed
when a special hazard exists with respect to
pedestrians.
The proposed instruction is based upon S 61-8-303 (5), MCA.
The District Court denied the proposed instruction on
two grounds: (1) that the statute does not apply to
pedestrians not in a crosswalk; and, (2) under the evidence
of the case, the driver, prior to the accident, did not
perceive any special hazard with respect to a pedestrian.
However, the statute applies to all pedestrians, whether or
not in a crosswalk, and the second reason given by the
district judge was an issue for determination by the jury.
Although the other instructions given by the District
Court relate to the several duties between a driver and a
pedestrian on a public highway, none of those instructions
told the jury that when a special hazard exists with respect
to a pedestrian, the driver must reduce his speed. This was
an important part of the theory of the plaintiff in this
case. It is reversible error to refuse to instruct on an
important part of a party's theory of a case. Northwestern
Union Trust Company v. Worm (Mont. 1983), 663 P.2d 325, 327,
40 St.Rep. 758, 761.
INSTRUCTIONS RELATING TO THE DUTY OF PLACING
FLARES OR OTHER WARNINGS BY DISABLED VEHICLES
The District Court instructed the jury that Smith had a
duty in this case to display two red flags upon the roadway
in the lane of traffic occupied by his disabled vehicle, one
at a distance of approximately 100 feet in advance of the
vehicle; and one at approximately a distance of 100 feet to
the rear of the vehicle. Section 61-9-412 ( 4 ) , MCA. Smith
objects to the giving of this instruction upon the ground
that since the truck behind the disabled vehicle was
exhibiting its flashing emergency lights, there was no need
for the flags to be placed behind the disabled vehicle. With
this, we cannot agree. There is a statutory duty regarding
warning flags placed upon drivers of disabled vehicles left
upon the travelled portion of the highway, and defendant had
the same right for instructions on her theory of the case as
did the plaintiff, discussed foregoing.
ARGUMENT OF THE EFFECT OF COMPARATIVE NEGLIGENCE
Smith on appeal argues that the District Court erred in
refusing to permit arguments by counsel to the jury as to the
legal effect of comparative negligence, when the negligence
of the plaintiff exceeds that of the defendant. Section
27-1-702, MCA.
The District Court did rule and admonish counsel that
the court did not want any argument to the jury relating to
the effect of varying percentages of fault that the jury may
find as between the plaintiff and the defendant. Defendant
did object to this ruling, but the objection was more pro
forma than substantive.
- -
No instructions on comparative negligence in this case
were offered by the plaintiff or the defendant, or given by
the court. Whether we accept Rorvik's version--that Smith
jumped into her path, or Smith's version--that he was struck
as he came from behind the loader into the highway area--it
is obvious that comparative negligence was an issue, and that
on remand, instructions on comparative negligence should be
given to the jury.
Although no instructions were given to the jury on
comparative negligence in this case, special verdict forms
were submitted which indicated, by the composition of the
questions, that if the jury found negligence on the part of
Rorvik which contributed to plaintiff's injuries, it must
thereafter determine whether Smith was contributorily
negligent, and then make a comparison of their negligence.
However, the jury in this case determined that although
Rorvik was negligent, her negligence was not a proximate
cause of the injuries sustained by Smith. It is difficult to
understand under the instructions given by the court how
Rorvik could have been negligent and yet that negligence
should not be a proximate cause of the injuries sustained by
Smith. It is quite evident that the jury was confused by the
concept of proximate cause because it sent four questions on
that subject out to the District Court during the time the
jury was deliberating on the case.
On retrial, the District Court should instruct the jury
on comparative negligence in order that the jury may
understand the effect of the related questions in the special
verdict, if the jury should come to that. The District Court
may not restrict argument of counsel as to the effect of
findings under comparative negligence. Under B 25-7-301(6),
MCA, counsel in arguing the case to the jury, may argue and
comment upon the law of the case as given in the instructions
of the court, as well as the evidence of the case.
The judgment is reversed and the cause remanded for new
trial.
We Concur:
Chief Justice
Justices
Mr. Justice L. C. Gulbrandson, specially concurring.
I concur with the result expressed in the majority
opinion but I do not concur with all that is stated therein.
I specifically do not concur with the comments that the
verbatim questions to the investigating patrolman, and his
answers thereto, constitute prejudicial error against the
plaintiff. Although the questions may have been
objectionable, no objection was made by plaintiff's counsel
to any of the questions. I would not treat the motion to
strike the witness's answer as an objection to the question
asked.
Mr. Chief Justice J. Turnage joins in the foregoing
specia concurrence of Just
.1