ESTRADA V. CUARON, 1979-NMCA-079, 93
N.M. 283, 599 P.2d 1080 (Ct. App. 1979)
Luis J. ESTRADA, as Administrator and
Personal
Representative of the Estate of Johnny Estrada,
deceased, and as father and next friend of
David Estrada, a minor,
Plaintiff-Appellant,
vs.
Daniel CUARON, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
1979-NMCA-079, 93 N.M. 283, 599 P.2d 1080
Motion for Rehearing Denied July 9,
1979
James P. Reichert, David R. Gallagher,
Gallagher, Casados & Martin, Albuquerque, for plaintiff-appellant.
James T. Roach, Klecan & Roach,
Albuquerque, for defendant-appellee.
WALTERS, J., wrote the opinion. HERNANDEZ,
J., concurs. SUTIN, J., concurs in part and dissents in part.
{1} Plaintiff appeals an
adverse jury verdict and judgment arising out of an automobile-pedestrian
accident that occurred August 5, 1976 at approximately 10:20 p.m. near the
southeast corner of the intersection of Coors Boulevard and Barcelona Road in
Albuquerque, New Mexico. Defendant was driving north on Coors Boulevard.
Decedent and his brother were crossing Coors Boulevard afoot from west to east
and were about twelve inches from the east curb line when the accident
occurred.
{2} The trial court refused
to admit evidence of speed of defendant's vehicle by two witnesses: (1) that of
a state police officer who clocked defendant's speed at 69 miles per hour 7/10
of a mile south of the point of the accident and (2) a lay witness, 16 years of
age, standing 10 feet east of Coors, who observed defendant's car about 75
yards south of the point of the accident, a split second before defendant's car
struck the boys. Plaintiff correctly contends that exclusion of this evidence
was reversible error. Both witnesses should have been permitted to testify.
{3} The eye witness, a 16
year-old boy with two years' driving experience, accompanied decedent and his
brother to the south side of
{*285} Barcelona
at the Coors intersection. He crossed Coors Boulevard first, stood about 10
feet east of Coors and watched the brothers cross. When they arrived at the
middle of the two northbound lanes of Coors Boulevard, he saw defendant's car
approaching from the south at about 75 yards. He looked back at the boys, with
the approaching car also within his sight, and saw the car strike them. It took
two or three seconds from the time he first saw the car to the time of the
accident.
{4} The witness was examined
in the absence of the jury. He testified that he drove his own car to work
everyday, and was experienced in observing the speed of other cars. He said
that defendant's vehicle was going at a high rate of speed, probably 65 or 70
miles an hour. The court held that the witness was not competent to evaluate
the speed.
{5} A sufficient foundation
had been laid for the witness's testimony.
State v. Richerson, 87 N.M.
437, 442,
535 P.2d 644 (Ct. App.1975);
Pavlos v. Albuquerque Nat'l Bank,
82 N.M. 759,
487 P.2d 187 (Ct. App.1971), and cases and authorities collected
in
Pavlos. Personal observation is the key factor in allowing lay
opinion evidence.
Pavols, supra, at 761,
487 P.2d 187. This witness was
clearly competent to observe defendant's vehicle and to estimate its speed. The
value of his opinion was for the jury to assess.
{6} Plaintiff tendered the
testimony of the state police officer who related that he clocked defendant
driving at 69 m.p.h. seven-tenths of a mile from the accident. He pulled off to
the side for fifteen seconds "at the most" to allow two cars to pass
so he could make a u-turn and pursue defendant, having defendant's taillights
in view at all times. He saw defendant brake "for an instant" at the
intersection of Rio Bravo,.2 mile before Barcelona where the accident occurred;
the car continued north and the brake lights came on again "for short
time, and off," and then on once again when defendant pulled onto the
shoulder north of Barcelona. The officer told the court that the second time he
saw the brake lights flash "must have been at the time of the
accident." He was unable to say how much the car slowed down after the
defendant braked "for an instant" before defendant reached the point
of the accident and made the second "on and off" application of his
brakes. Defendant testified he was driving fifty-five miles per hour before he
reached Rio Bravo.
{7} There is no question that
the officer's testimony was relevant as tending to make the existence of
defendant's excessive speed more or less probable than it would be without the
evidence. N.M.R. Evid. 401, N.M.S.A. 1978. It was not made inadmissible by
reason of danger of unfair prejudice, confusion of issues or misleading the
jury, undue delay, waste of time, or because it was cumulative evidence. Rule
403. He clocked defendant at 69 m.p.h. a half-mile south of Rio Bravo.
Defendant said he "slowed down" to "about fifty miles an
hour" between Rio Bravo and Barcelona. Even assuming a 50-mph speed for
the entire .7 mile from the radar contact to the point of the accident, the officer's
observation occurred less than a minute before the accident (.7 mile (3696
feet) divided by 70.0 feet/second (at 50 m.p.h) = 52.8 seconds); thus the
evidence of speed was not so remote as to be misleading or confusing, cf.,
Pavlos
v. Albuquerque Nat'l Bank, supra (evidence relating to driving conditions
as far as 72 miles from scene of accident). Additionally, it was relevant to
the credibility of defendant's statement that he had not exceeded the speed
limit that night. Rule 607.
{8} The purpose of a trial of
factual issues is to arrive at the truth, insofar as possible.
State ex rel.
Hwy. Dept. v. Kistler-Collister Co. Inc., 88 N.M. 221,
539 P.2d 611 (1975).
The jury had before it only the testimony of defendant regarding speed, the
testimony of both the officer and the eye-witness having been excluded. Thus
the defendant's testimony at trial was uncontradicted. If the excluded evidence
had been admitted, the jury was not bound to believe either of the witnesses,
nor that the radar-recorded speed continued to the point of accident;
{*286} but even though the testimony of these
witnesses was not conclusive, it was relevant to the issue of defendant's speed
and should have been submitted to the jury. "'It is wise to remember that
the trend in American jurisprudence is toward the greater admissibility of
evidence. We must not "close any reasonable avenues to the truth in the
investigation of question of fact. In doubtful cases the doubt should be
resolved in favor of its admissibility."'"
Weiland v. Vigil,
90 N.M. 148, 153,
560 P.2d 939, 944 (Ct. App.1977), Sutin, J., quoting from his
dissent in
Pavlos v. Albuquerque Nat'l Bank, supra.
{9} The radar evidence
corroborated the lay witness's opinion that defendant was traveling between 65
and 70 m.p.h. at the point of impact.
Dawson v. Olson, 97 Idaho 274, 543
P.2d 499 (1975). By the same token, the police officer's testimony confirmed
the testimony of the layman; and the jury should have been allowed to weigh
their conflicting evidence with that of defendant's.
Jones v. Anderson,
81 N.M. 423,
467 P.2d 995 (1970).
{10} The trial court was in
error in excluding the tendered evidence by plaintiff's two witnesses.
{11} The case is reversed and
remanded for a new trial.
SUTIN, J., concurs in part and dissents in part.
SUTIN, Judge (concurring in part and dissenting in part.)
{13} I concur and dissent.
{14} Judges Hernandez and
Walters withdrew my opinion in this case which had been filed on May 23, 1979.
To avoid any misunderstanding, I do herewith set forth the pertinent parts of
my opinion.
{15} We reverse as follows:
(1) The Court is in accord on Point B of the opinion, that
the trial court erred in denying admission of the testimony of the lay witness.
(2) Judges Hernandez and Walters, in special opinions also
reverse on denial of the admission in evidence of the police officer's
testimony. Judge Sutin dissents.
{16} Point A in this opinion
which follows represents Judge Sutin's dissent.
A. The trial court did not abuse its discretion in denying
admission of officer's testimony.
{17} The police officer was
travelling south on Coors Boulevard. At approximately 7/10 of a mile south of
the Barcelona intersection, the officer, by radar, clocked the speed of
defendant's approaching vehicle at 69 miles an hour. At that moment,
defendant's vehicle was 205 yards south of the police car or about 9/10 of a
mile from the Barcelona intersection. The accuracy of the radar evidence was
not challenged.
See, Annot.,
Proof, by radar... of violation of speed
regulations, 47 A.L.R.3d 822 (1973). The officer stopped on the shoulder of
the road to allow two cars behind him to pass. After 15 or 20 seconds, a U-turn
was made and the officer proceeded north. He saw the taillights of the vehicle.
At the Bravo intersection, he saw the brake lights go on and then off. How much
the vehicle slowed down, he could not say. Neither could he estimate the rate
of speed as the vehicle approached the point of the accident.
{18} At first blush, the
trial court held the testimony relevant under Rule 401 of the Rules of Evidence.
After extensive argument and further questioning of the police officer, a
change of position occurred. The trial court held the clocked speed irrelevant
because it could not be tied to the cause of the accident. The court concluded:
I am not prepared to let my jury speculate.
{19} Rule 401 defines
"relevant evidence" as follows:
"Relevant evidence" means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more {*287} probable
or less probable than it would be without the evidence.
{20} The determination of
relevancy rests largely within the discretion of the trial court.
Wright v.
Brem, 81 N.M. 410,
467 P.2d 736 (Ct. App.1970). Judicial discretion is also
the controlling factor in the admissibility of vehicular speed fixed at some
point distant from the accident. On appeal, respect for this discretionary
process is eminent and conspicuous. It represents the personal judgment of the
court based in all conscience on an honest attempt to resolve the perplexing
problem involved in the reception of evidence. It involves a choice, an
exercise of the will, of a determination made between competing circumstances.
In making the determination, the court must evidence the exercise of will, not
perversity thereof, the exercise of judgment, not the defiance thereof, the
exercise of reason, not passion or bias. On appeal, I look to see if the result
is palpably and grossly violative of fact and logic. Unless the reasons given
are so untenable or unreasonable in such fashion as to amount to a denial of
justice, the decision of the trial court must be affirmed.
Pankey v. Hot
Springs Nat. Bank, 42 N.M. 674, 680-81,
84 P.2d 649, 653 (1938) says:
Any attempt to define the phrase "judicial
discretion" is generally regarded as a difficult and dangerous
undertaking. But we venture that such a discretion as the law sanctions is not
arbitrary, vague, or fanciful, nor is it to be controlled by humor or caprice,
but is to be governed by principle and regular procedure for the accomplishment
of the ends of right and justice.
{21} The ruling of the trial
court is presumed valid and the burden is on plaintiff to show in which manner
the trial court abused its discretion. We will not substitute our discretion
for that of the trial court.
Coastal Plains Oil Company v. Douglas, 69
N.M. 68,
364 P.2d 131 (1961). Plaintiff's burden is heavy in view of our
long-standing rule that the action of the trial court, absent a patent abuse or
manifest error in the exercise of discretion, will not be overturned.
Hanberry
v. Fitzgerald, 72 N.M. 383,
384 P.2d 256 (1963). This burden has not been
met. In so concluding, I lay aside any personal feelings of disagreement that
we might have. If the trial court had ruled the testimony of the police officer
admissible, I would have affirmed the determination made.
{22} In
Giroux v. Gagne,
108 N.H. 394, 236 A.2d 695, 698 (1967), Justice Grimes said:
A review of the many cases involving merely evidence of speed
at various distances from a scene of an accident would not be helpful. For a
collection of cases, see Annot. 46 A.L.R.2d 9....
{23} In the 22 years
following the Annotation published in 1956, a review of the many cases on the
subject follow in the tenor of the preceding Annotation.
See A.L.R.2d,
Later Case Service for 40-48 cases. Each case is decided upon the facts and
circumstances surrounding the event. Judicial discretion is and is not relied
upon by appellate courts. Admission of evidence of speed at various distances
is and is not remote. Denial of admission of evidence of speed at various
distances is and is not reversible error. It may be said with some degree of
certainty that each appellate court affirms or reverses in the climate of what
it believes to be fair or just. No hard and fast rule can be laid down on the
subject.
{24} Ofttimes, the most
important factor is (1) the degree of probability that speed continued until
the accident occurred; (2) whether a casual connection existed between the
speed and the accident; (3) whether evidence of speed stands alone or fits into
a pattern with other evidence to show continued speed; (4) what period of time
elapsed between the witness's observation of speed and his arrival at the scene
of the accident; (5) whether prejudicial error exists; and (6) whether the
trial court exercised judicial discretion or abused it.
{*288} {26} In Richerson, a witness, 200 feet from an
intersection, testified that defendant was driving at 70 miles per hour. Within
the discretion of the court, the evidence was admissible. In Garrett,
the trial court did not abuse its discretion in excluding evidence that after
the accident an unidentified bystander had said that within a mile and a half
of the scene of the accident, defendant-driver had passed her "doing
better than 100." In both cases, reference was made to the A.L.R.
Annotation, supra.
{27} For analogous cases in
which judicial discretion was the controlling factor upholding the trial court
who either admitted or denied evidence of speed, see, Comins v. Scrivener,
214 F.2d 810 (10th Cir. 1954), 46 A.L.R.2d 1 (1956), in which Justice Bratton
decided a New Mexico case; Gleson v. Thompson, 154 N.W.2d 780
(N.D.1967); Emery v. Frateschi, 161 Me. 281, 211 A.2d 578 (1965); Hill
v. Sadler, 186 So.2d 52 (Fla. App.1966); Swindall v. Speigner, 283
Ala. 84, 214 So.2d 436 (1968); Bennett v. Bass, 248 Md. 260, 235 A.2d
715 (1967); Shoopman v. Long, 252 Or. 341, 449 P.2d 439 (1969); Baxter
v. Rounsaville, 193 So.2d 735 (Miss.1967); Maxie v. Doe, 215 Va.
409, 211 S.E.2d 246 (1975).
{28} In the instant case, the
trial court, in making its determination, exercised judgment and reason. I
cannot say that the result was so palpably and grossly violative of fact and
logic, nor so untenable or unreasonable as to amount to a denial of justice. There
was no abuse of discretion.
B. The testimony of the lay witness was admissible. The
weight and credit to be accorded it is for the jury.
{29} The lay witness, 16
years of age, accompanied decedent and his brother to the south side of
Barcelona at the Coors intersection. He crossed Coors Boulevard first, stood
about 10 feet east of Coors and watched the brothers cross. When they arrived
at the middle of the two northbound lanes of Coors Boulevard, he saw
defendant's car approaching from the south at about 75 yards. He looked at the
boys, looked back at the car at the moment the car struck them. It took two or
three seconds from the time he saw the car to the time of the accident. The
trial court sustained defendant's objection to the witness's estimate of speed.
The witness was examined in the absence of the jury. He glanced at the car for
just about a second, a split second or so, and stated that defendant's vehicle
was going at a high rate of speed, probably 65 or 70 miles an hour. The court
held that the witness was not competent to evaluate the speed. We disagree.
{30} Gibbs v. Gianaris, 137
Ga. App. 18, 223 S.E.2d 4 (1975) involved a motorcycle-automobile accident in
which the jury found for defendant-automobile driver. Plaintiffs urged that it
was error to allow two teenagers to give their estimate regarding speed of
plaintiff's motorcycle prior to the collision because no sufficient opportunity
existed to observe the vehicle and both were not competent to estimate speed
due to age and lack of experience.
{31} One witness, 14 years
old, saw the plaintiff for "just a brief second" and estimated his
speed at "approximately 50 to 55 miles per hour." The witness
admitted he had never driven an automobile prior to that time but stated he had
owned a motorcycle. The length of time he observed the motorcycle was
"just a second" and he conceded that his estimate was a
"guess." The other witness, aged 15, who had ridden in and driven
cars, estimated the speed "between 50 and 60." He stated he observed
the motorcycle "between a split second and a second."
{32} Omitting the citation of
cases, the court said:
A non-expert witness may give an opinion concerning speed
where he relates the facts on which such opinion is based. Where the witnesses'
qualifications are weak, the testimony is admissible, although the weight and
credit to be accorded it is for the jury.
[T]estimony was allowed by a witness who had only gotten a
"glimpse" of the vehicle, the court holding: "The period of
observation upon which the testimony of a witness as to speed is based is a
factor {*289} for the jury to consider
in weighing the testimony of the witness and does not affect its
admissibility."
From these cases we conclude that the testimony of the
witnesses was admissible, leaving for the jury to determine whether their
period of observation was sufficient and whether they had the requisite
experience. [223 S.E.2d at 5].
{33} Opinion testimony as to
speeds, time, and distance is admissible even though it may be very unreliable.
Harris v. Collins, 145 Ga. App. 827, 245 S.E.2d 13 (1978); Fuels,
Inc. v. Rutland, 123 Ga. App. 23, 179 S.E.2d 290 (1970).
{34} For cases which support
the Gibbs rule, see Hicks v. Bacon, 26 Mich. App. 487, 182 N.W.2d
620 (1970); Cederburg v. Carter, 448 P.2d 608 (Wyo.1968); Raines v.
Boltes, 258 Md. 325, 265 A.2d 741 (1970); Godwin v. Jerkins, 282
Ala. 11, 208 So.2d 210 (1968); Davis v. Imes, 13 N.C. App. 521, 186
S.E.2d 641 (1972); Murchison v. Powell, 269 N.C. 656, 153 S.E.2d 352
(1967); Emanuel v. Clewis, 272 N.C. 505, 158 S.E.2d 587 (1968); Potts
v. Brown, 452 P.2d 975 (Wyo.1969). Contra; Carpino v. Kuehnle, 54
F.R.D. 28 (D.Pa.1971), aff'd, 3 Cir., 474 F.2d 1339; City of Milwaukee v.
Berry, 44 Wis.2d 321, 171 N.W.2d 305 (1969).
{35} The trial court erred in
denying admission of the estimate of speed of the lay witness.