dissenting. In my opinion Dr. Henry Hicks should have been allowed to testify as an expert in this case. For twenty-five years he has been teaching at the University of Arkansas and is a professor in mechanical engineering. He has testified many times before and usually has to rely to some extent upon information furnished by others, as do most expert witnesses. Dr. Hicks had been to the scene of the accident, and by the use of an Arkansas State Highway Department map, he had physically walked off the distances as reflected on the police report. Moreover, he heard witnesses testify about the speed of the bus and the maneuvers which the bus made before it overturned.
In the present case he sent an engineering assistant, who held a master’s degree in mechanical engineering, to Jackson, Mississippi, to inspect the brake system on the bus. The assistant had reported: “The brake shoe did not effectively contact the brake drum on that wheel.... Inspection of the aft rear wheel [left side] revealed the presence of copious amounts of lubricating oil on the brake drum.” The assistant also conducted an operating test on the brakes of the bus. Dr. Hicks did not instruct his assistant precisely on how to go about gathering the data he sought because the man was a dependable and reliable assistant and had performed such tasks many times before.
I agree with the majority opinion that an expert is needed when the jury is unable to understand the facts as presented. I cannot, however, agree that an expert is not a proper witness when there are eyewitnesses to the occurrence. Arkansas Rules of Evidence Rule 702 states:
If scientific, technical or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.
Rule 402 provides:
All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable to the courts of this State.
Relevant evidence may be excluded pursuant to Rule 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
It is frequently necessary that expert opinion be based on sources other than actual physical experience. Einstein never “saw” relativity, nor did Sir Issac Newton see the apple falling on his head. Nevertheless, the theories of relativity and gravity are accepted today as basic “givens” in scientific discourse. An expert’s testimony which is based on hearsay goes only to his credibility. Hearsay evidence may form the basis of an expert’s opinion. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978).
Arkansas Rule of Evidence 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence.
Obviously the facts about which Dr. Hicks wanted to testify were “perceived by or made known to him” prior to the trial. The weight of Dr. Hicks’ testimony could have been tested by cross-examination. The fact that it was based partly upon hearsay is not sufficient grounds for excluding it. Wallace v. Williams, 263 Ark. 702, 567 S.W.2d. 111 (1978).
We have in the past held, or at least indicated, that an expert could not testify unless the matter in question was beyond the comprehension of the jury. However, such a limitation is outdated and certainly is contrary to the spirit of the Arkansas Rules of Evidence. Although there is room for a difference of opinion on whether Dr. Hicks should have been allowed to testify on the question of the causation of the occurrence, it cannot be reasonably disputed that his testimony concerning the brakes should have been admitted. When Dr. Hicks was questioned about the brakes, the trial judge interrupted, saying: “Forget the brakes, can’t go into that, can’t even mention the fact that there were bad brakes.”
In my opinion the ruling on this testimony was erroneous. I would reverse and remand for a new trial.