Mrs. Mary GRAY, surviving wife of Paul Gray, Appellant,
William Lytle WOODS and Whiting Brothers Land and Timber Company, a corporation, and Whiting Brothers Lumber Yards, Inc., a corporation, Appellees.
Rehearing Denied July 1, 1958.
[84 Ariz. 89] Rawlins, Davis, Christy, Kleinman & Burrus and Chester J. Peterson, Phoenix, for appellant.
Fennemore, Craig, Allen & McClennen, Kenneth L. Abrams and Calvin H. Udall, Phoenix, for appellees.
[84 Ariz. 90] JOHNSON, Justice.
Mary Gray (plaintiff-appellant), surviving wife of Paul Gray, commenced the action against Whiting Brothers Land and Timber Company, a corporation, and its driver, William Lytle Woods (defendants-appellees), for damages resulting from the death of her husband. The cause was tried before a jury which returned a verdict in favor of the defendants, and judgment having been entered in favor of defendants, and after the denial of the motion for a new trial, this appeal follows.
The accident happened at approximately 10:30 p. m., at which time the defendant William Lytle Woods was driving a semitruck and trailer loaded with lumber on Highway 60, heading southwest from Show Low toward Globe, Arizona, and while
driving at a speed of approximately thirty-eight miles per hour, at a point about midway of a one and one-half mile incline into an arroyo known as Seven-Mile Wash, ran into a Studebaker sedan owned and being operated by I. W. Riddle, in which the plaintiff's husband was riding as a passenger. As a result of the collision both men were killed.
When the driver of the lumber truck started down the incline he noted a car, later shown to have been driven by a Mr. Holley, to his rear, and assuming the car desired to pass Woods then dimmed his lights as a sign that the road was clear for passing and moved to the right-hand side of the road. When the rear car driver changed his mind and did not pass Woods looked in his rear view mirror, continued down the road, and ran into the Riddle car which was crosswise in the road directly in his lane of traffic. The truck driver had continued with his lights on dim and did not see the Riddle car until he was 'practically on him'. The headlights of the car were not on until the instant of the impact, and were still on when the car came to rest in the canyon. A Greyhound bus had passed Holley and the lumber truck approximately three to five miles or minutes prior to the point of impact, and at the point of impact this driver later testified he had noticed a dark car which he almost struck; that it was pointed toward Show Low and was partially over the center line; and that the lights were not on but the car was stopped and two men were looking under the hood.
The truck driver testified that his truck, with its lights on dim, had a beam which he estimated would shine approximately 175 feet in front of his truck, and on bright they would shine for more than 1,000 feet. There was evidence that the road down this incline was straight and unobscured for 540 feet prior to the point of impact.
The lumber truck struck the two-door Studebaker sedan broadside at a point near the left-hand door, and carried it down the [84 Ariz. 91] road some distance and then off into a canyon where both vehicles came to rest.
Plaintiff assigns as error the action of the trial court in permitting a highway patrolman to testify and give his opinion on the question of the point of impact on the highway and the point of impact of the two vehicles, for the reasons that (1) such opinion was on matters of common knowledge and experience, and (2) that it was based on facts and investigations outside the evidence presented at the trial and was not based on a hypothetical question framed from the facts presented during the trial.
The highway patrolman testified on behalf of the appellees that he had been in the service of the patrol for two years and that prior thereto he had completed the course of study of the highway patrol academy, which includes accident investigations, and was then assigned with a senior patrolman for additional training. Also, that during his duty as a patrolman he had investigated many accidents. This court has held that the question of the competency of an expert witness is a matter resting in the sound discretion of the trial court, and its exercise will not be reviewed but for abuse. Arizona Superior Mining Co. v. Anderson, 33 Ariz. 64, 262 P. 489.
The patrolman then testified that as a result of his investigation he found dirt and debris on the highway and gouge marks in the pavement left by one of the wheels of the Studebaker, and based upon his previous experience and training and the above evidence at the scene of the collision it was his opinion that the point of impact was approximately four feet north of the center line of the highway and in the lane for Globe-bound traffic. He further testified that upon examining the Studebaker car he found an impression on the left door made by a large rivet on the front bumper of the lumber truck. There is no evidence in the record to indicate that his opinion as to the point of impact was in any manner based on information told to him in the course of his investigation. It
is limited to the physical evidence found on the highway at the scene of the accident. Thus, from the record, there is no merit to the contention that it was based on hearsay evidence, and the trial court properly admitted such evidence.
It is now generally recognized that a highway patrolman or other officer, when shown to have proper training and experience in the investigation of traffic accidents, testifying as an expert witness, may properly give an opinion as to the point of impact in a traffic accident where his opinion is based on marks on the highway, damage to the vehicles involved, and the location of debris on the highway or other indicia at the scene, but not when such opinion is founded on statements made to him by other persons. Grant v. Clarke, 78 Idaho [84 Ariz. 92] 412,305 P.2d 752; Wells Truckways, Ltd. v. Cebrian,122 Cal.App.2d 666, 265 P.2d 557; Kalfus v. Fraze,13 ...