South v. Nat’l R.R. Passenger Corp. - 290 N.W.2d 819 (N.D. 1980)

Rule:

N.D. R. Evid. 702, which governs the admission of expert testimony, states that if scientific, technical, or other 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. The test for admission of expert testimony under N.D. R. Evid. 702 is whether or not such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue and whether or not the witness is qualified as an expert. The determination to admit or not admit expert testimony under N.D. R. Evid. 702 rests within the sound discretion of the trial court, and its determination will not be reversed on appeal unless the court has abused its discretion.

Facts:

An action was commenced by plaintiff Billy Lee South for damages sustained as a result of a collision between a pickup truck, owned and driven by South, and the Railroad's train at the Barrett Avenue crossing in Larimore, North Dakota, on January 17, 1976, at approximately 6:20 a.m. South sustained serious injuries in the collision. He sued the Railroad for damages on a theory of negligence, and his wife, Delores, also sued the Railroad for damages allegedly incurred by the loss of her husband's consortium. Prior to the collision South was employed as a missile site superintendent. South lived in Larimore, and on the morning of the collision [**3]  he, for the first time, was driving to work at a new missile site location to which he had been assigned. To drive to the old work site South crossed the railroad tracks in Larimore at the Towner Avenue crossing, but in order to drive to the new work site South took a route which crossed the tracks at the Barrett Avenue crossing. As South approached the Barrett Avenue crossing traveling south at approximately 20 miles per hour, a westbound AMTRAK passenger train was also approaching the Barrett Avenue crossing traveling at approximately 68 miles per hour. Both the train and South's pickup reached the crossing at approximately the same instant and the front of the train engine collided with the left front portion of South's vehicle.  South's expert witnesses testified that under the conditions existing at the time of the collision it was impossible for South to see the train in time to stop before reaching the railroad tracks. South asserted that the train whistle did not blow a warning of the train's approach to the Barrett Avenue crossing, and several witnesses testified on South's behalf that although they were in a position to hear the train whistle at the Barrett Avenue crossing that morning they did not hear the whistle blow. South also introduced evidence to support his assertion that the railroad negligently maintained the crossbuck sign at the Barrett Avenue crossing. At the conclusion of the trial the jury returned a verdict in favor of South and his wife, Delores, against the Railroad. 

Issue:

Was it improper for South and his witnesses to introduce expert testimony involving matters of common knowledge to lay persons?

Answer:

No.

Conclusion:

With respect to South's accident, Cysewski was allowed to testify on the following matters over the railroad's objection: (1) General standards of construction and design of highways and traffic control devices; (2) Various aspects of the Barrett Avenue crossing which rendered the crossing extrahazardous or dangerous; (3) Perception reaction times and effects of the coefficient of friction on stopping time and distance. The trial court did not abuse its discretion by admitting Cysewski's expert testimony under Rule 702, NDREv. The matters about which Cysewski testified are of the type which the trial court could allow expert opinion to assist the jury in its determination of the issues. In the instant case the trial court allowed Cysewski to testify regarding standards of construction and design of highway and traffic devices. In the instant case, trial court properly instructed the jury on the law and the standard of care to be applied, and this evidence of generally recognized standards was properly admissible to assist the jury in determining whether the Railroad had acted negligently under the existing circumstances.

Further, Railroad’s argument that the expert witnesses cannot contradict South’s testimony was unmeritorious. The Souths' expert witnesses testified that it would have been impossible for South to stop his vehicle prior to reaching the railroad track. South testified, however, that at 20 m.p.h. he could have stopped his vehicle within twice its length or approximately 18 feet and 1 inch.

There is a well-recognized rule that a party is not bound by his own testimony on matters which constitute an estimate or an opinion. During the trial South had a right to testify and to express his opinion on the distance within which he could have stopped his vehicle on the morning of the accident. However, South's stopping distance testimony constitutes a mere opinion on a matter, the technical aspects of which are not generally within the common knowledge of lay persons. Accordingly, South was not bound by his testimony that he could stop his vehicle within twice its length. The trial court properly allowed South to introduce expert opinion testimony as to the time and distance within which South could have stopped his vehicle.