dissenting. The majority has decided two points, and I respectfully dissent on both.
I. The Majority Opinion Holds That The Trial Court Was Correct In Refusing To Permit The Testimony Of The Expert Ralph H. Snyder. For convenience, I will refer to the appellant as “Little” and the appellee as “George Feed Company.” Little offered the testimony of Ralph H. Snyder as an expert witness. His qualifications were detailed at considerable length. If George Feed Company had doubted Snyder’s qualifications, an objection should have been made and the Court could have ruled on his qualifications as an expert. Fireman’s Ins. Co. v. Little, 189 Ark. 640, 74 S. W. 2d 777. But that was not the course that George Feed Company pursued. After the various matters had been stated and hypothetical matters assumed, the expert was asked to state his opinion and the Trial Court would not allow him to give his answer. This brings up the important question of the right of a litigant to have expert evidence as to the cause of an automobile accident.
In the case at bar there was only one person alive who was present at the collision, and that was Cline. Certainly, the jury needed as much information as it could get; and expert testimony would have helped the jury. Snyder had made a detailed study and said that he had an expert opinion; and I think the jury should have been allowed to hear his opinion. What the jury might have thought of his evidence, I do not know, but the jury was entitled to learn what was the opinion of the expert. In Am. Jur., Yol. 5A, at page 870 (“Automobiles and Highway Traffic,” § 992), in discussing expert and opinion evidence as to the cause of an accident, the text says that there is a category of cases: “ (3) where the opinion is that of an expert who did not observe the accident or the conditions after the accident”; and as to that type of testimony, the text says:
“Thus, where the issue was whether an automobile collision was caused by the defendant’s driving on the wrong side of the road, the opinion of an expert in automobile driving was held admissible, supported by demonstrations before the jury, that if the defendant’s car had approached the place of the accident on its left side of the road, the lights of the other car, approaching from the opposite direction, conld not possibly have shone on the front of it, because of the curve in the road. But the opinion of such an expert witness is not admissible where the circumstances can be fully placed before the jury and the inference from those circumstances is within the competency of the jurors."1
The trend of the holdings is to admit the testimony of expert witnesses in eases like this one. In the 1960 Cumulative Supplement to Volume 5A of American Jurisprudence, § 991, on Automobiles and Highway Traffic, the text reads:
“Although some cases hold or recognize that skilled or expert opinion evidence as to the point of impact or collision is not admissible in motor vehicle accident cases, these courts, for the most part, taking the view that the subject matter is not one requiring skilled or expert opinion testimony, or that the admission of evidence of that kind improperly invades the province of the jury, or both, there is strong, and apparently growing, authority holding or recognizing that shilled or expert opinion evidence is admissible upon the question. These courts recognize that opinions given by shilled or expert witnesses aid the jury, or the court sitting in lieu thereof, in drawing correct inferences from the raw and umorted facts, and that such evidence does not usurp the province of the jury, since the jury does not have to accept the witness’ opinions. In addition, it may be noted that the cases holding or recognizing the admissibility of skilled or expert opinion evidence show that the witness giving the testimony had an opportunity to investigate the scene reasonably soon after the accident and had sufficient experience to form a reasonable opinion based upon his observations. Shilled or expert witnesses who have been offered to give opinion evidence as to the point of impact or collision in motor vehicle accident cases include law enforcement officers, garagemen and mechanics, and engineers and traffic experts.”2 (Emphasis supplied.)
The majority says that Mr. Snyder talked of marks and gouges on the pavement and that other witnesses had testified that none existed. This very conflict presented a matter for the jury to decide as to who was correct. If the other witnesses said there were no marks and Snyder said he found marks, then the jury should decide who was right. Why should this Court hold that Snyder was wrong? It was for the jury to decide. Furthermore, the witness Snyder said he could testify independently of any such marks and gouges, and still he was not allowed to testify. The majority quotes a portion of his testimony about one of the vehicles sliding backwards, as though that quoted testimony was any reason for refusing to let the expert testify. He could have been taken on cross examination and maybe that point could have been clarified or disproved. It seems to me that the majority is placing itself in the jury box in discrediting Snyder’s testimony and holding that he should not have been allowed to testify.
In some of the cases it is stated that the testimony of an expert invades the province of a jury. The expert is to give the jury as much information and help as possible so that it may correctly decide the facts. The witness Snyder had made a detailed study of the locale of the accident and of the damaged vehicles. The majority quotes from Conway v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137. But the language in that case does not decide the point here at issue. There, the police officer was not asked the detailed facts but was asked for only “other physical evidence found at the scene. ’ ’ The expert should detail all that he saw and found and then give his conclusion ; so it is clear that the question was not properly phrased in the quoted case. Furthermore, in the cited case the majority opinion states that in the absence of anything to indicate that it was beyond the jury’s ability to understand the facts and draw their own conclusions, there was no need to resort to expert opinion. There were several eye witnesses in the Conway case, so there was no need to resort to expert testimony. However, as previously stated, in the case at bar there is only one person alive who was present at the accident, and he was already past the point of impact before the collision occurred. If there ever was a case where the jury needed expert testimony to aid it in arriving at a conclusion, it seems to me that this is the case. Therefore, I respectfully dissent from the first point decided by the majority.
II. The Majority Is Holding That The Trial Court Was Correct In Refusing To Submit Little’s Counterclaim To The Jury. The Trial Court submitted the direct complaint of the George Feed Company to the jury. If there was evidence enough to take the George Feed Company’s claim to the jury, then there was evidence enough to take Little’s counterclaim to the jury. The knocking down of the post, the marks on the two vehicles — all of those facts were just as strong for Little’s counterclaim as they were on George Feed Company’s direct claim.
Furthermore, it is most significant that the jury refused to return a verdict for the George Feed Company and Norman Cline; so it is a reasonable assumption that the jury did not find the George Feed Company and Cline to be free of negligence. It is definitely established that the collision happened. Somebody was on the wrong-side of the road. If the deceased Greenwood was on the wrong side of the road, then the jury should have returned a verdict for George Feed Company and Cline. But when the jury failed to return a verdict for George Feed Company and Cline, it rather strongly suggests to me that the jury thought that GreenAVOod Avas not on the wrong side of the road. The counterclaim of Little should, therefore, have gone to the jury; and I dissent from the majority holding on this point also.
Robtnson J., joins in both points of this dissent.There is an annotation in 38 A. L. R. 2d 62, § 24, on this matter of expert testimony as regards automobile accidents.
There is an annotation in 66 A. L. R. 2d 1069, § 9, on the admissibility of testimony of engineers and traffic experts as to the point of collision in an automobile accident.