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Miller v. Pillsbury Co.

FEBRUARY 8, 1965.

MARY JEAN MILLER, ADMINISTRATOR OF THE ESTATE OF PAUL RICHARD MILLER, DECEASED, PLAINTIFF-APPELLEE,

v.

THE PILLSBURY COMPANY, A CORPORATION, AND MACK PARGIN, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Moultrie County; the Hon. RODNEY A. SCOTT, Judge, presiding. Affirmed.

SMITH, J.

Defendants, the Pillsbury Company and its employee, a truckdriver, appeal from two judgments. One judgment is against both of them on a wrongful death claim, the other denies recovery to Pillsbury on its counterclaim against the plaintiff and the employer of plaintiff's deceased for cargo damage. They point to errors in the admission of certain photographs, testimony of an accident reconstruction expert, and the court's direction to the jury to reconsider the verdicts on their first return. Contention is also had that plaintiff failed to negate contributory negligence on the part of the deceased, and that the judgments are against the manifest weight of the evidence.

Three trucks were involved in the fatal accident. One was driven by plaintiff's decedent, and the other two by employees of Pillsbury. A sideswipe occurred between deceased's truck and one of the Pillsbury trucks as they passed in opposite directions, causing deceased's truck to careen down the highway and into the path of the other Pillsbury truck. The counter-claim relates to the cargo in the second Pillsbury truck. Not involved in the accident was a third Pillsbury truck which had preceded the other two. There were no eyewitnesses, or more correctly, none who could testify, meaning that the factual determinations that had to be made, had to be inferred from the circumstances of the accident. Some of the inferences, including the very important one as to who was over the center line, were drawn by an accident reconstruction expert for plaintiff. The propriety of admitting such testimony is, therefore, a matter of the utmost importance.

Defendants' attack on such proof is two-pronged: (1) Such proof was incompetent; and (2) if competent, incredible. Only by implication is the expertise of the expert questioned.

With regard to competency, it is true that courts are leery of seeing too many inferences drawn by experts, thus leaving only the inferences to be tried rather than the facts themselves. This reluctance has been cast in such phrases as, "usurping the jury's function," "invading the province of the jury," and "confusion of trial issues." While eschewing a battle of words by experts, the modern thrust, if we may call it that, is away from a too stringent delimitation, and this has been accomplished without negating the concept that the trier of the fact should try the facts. In fields outside of or beyond their ken or understanding, or if within, difficult of comprehension, experts have often been called upon to assist the trier in coming to a proper finding or verdict. Specifically has this been true in the reconstruction of vehicular collisions. We are of the persuasion that in a proper case, an expert should be permitted to give his opinion as to how an accident occurred, and to infer out loud how the vehicles involved may have acted before, at the time of, and after an accident. We agree with this statement from 10 Proof of Facts, page 144, "Reconstruction of Accidents:"

"The trend is to allow expert opinion testimony reconstructing motor vehicle accidents from physical evidence, provided the expert witness is sufficiently qualified in the particular field, has before him enough physical evidence to provide him with the important variables involved, makes his reasoning process clear to the trier of fact, and provided his conclusion from the physical evidence is not contrary to those facts or `in conflict with common observations and experiences of men.'"

In Thomas v. Cagwin, 43 Ill. App.2d 336, 193 N.E.2d 233, a witness who possessed the requisite expertise in this field was permitted to testify that in his opinion the point of impact was in the northbound lane, a matter, as might be expected, of extreme importance. There the court observed:

"Although this type of evidence should be admitted with caution, we believe that its admissibility rests within the sound discretion of the trial judge and in this case we cannot say that the trial judge abused his discretion."

In another case, Ficht v. Niedert Motor Service, Inc., 34 Ill. App.2d 360, 181 N.E.2d 386, such expertise was denied admittance. There the expert (also the expert here) was offered for purposes of tracing the movements of a truck trailer as it rounded a curve. We quote:

"His testimony would be based upon principles of engineering and physics relative to the movement of vehicles under relative circumstances at relative speeds. He would testify to the arc made by the rear wheels of the trailer and the forward wheels of the tractor, and translate that turn onto the plat introduced by plaintiff to which all other witnesses referred in their testimony regarding the location of the vehicles involved at various times. . . . The course which the truck took in making the turn at the intersection was a matter of common observance of the witnesses who saw the occurrence. The jury is able to properly comprehend and weigh the facts without the aid of an expert. To permit an expert witness to reconstruct the scene of a collision and retrace the movement of a vehicle from the point of impact back to some point prior thereto, and testify in contradiction to the testimony of witnesses who viewed the occurrence, would open the door in every personal injury case to expert testimony on factual matters, and would be an invasion of the province of the jury."

In this particular case, there were eyewitnesses, but whether their presence was a factor in denying admission is something we do not know, of course, for sure. We too can only infer.

In 66 ALR2d 1048, in an annotation entitled "Admissibility of Opinion Evidence as to Point of Impact or Collision in Motor Vehicle Accident Case", there is this statement on page 1050:

"Although some cases hold or recognize that skilled or expert opinion evidence as to the point of impact or collision is not admissible . . . there is strong, and apparently growing, authority holding or recognizing that skilled or expert opinion evidence is admissible upon the question.

"These courts recognize that opinions given by skilled or expert witnesses aid the jury, or the court sitting in lieu thereof, in drawing correct inferences from the raw and unsorted facts, and that such evidence does not usurp the province of the ...


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