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Willman v. Wall3/14/2000
ury returned a verdict assessing 100% fault to Mr. Wall and awarding Mr. Willman damages of $172,000 for his personal injuries and $8,000 for property damages. The court entered judgment for Mr. Willman in the amount of $180,000 plus costs. This appeal followed.
I.
In his first point on appeal, Mr. Wall claims that the trial court erred in excluding the testimony of Erica Wall, Mr. Wall's eleven-year-old daughter, regarding the speed of Mr. Willman's vehicle at the time of the accident. Erica was nine years old when the accident occurred. The trial court excluded Erica's testimony of her estimation of the speed Mr. Willman's vehicle was traveling immediately prior to impact for lack of foundation. Mr. Wall contends that Erica was sufficiently qualified to estimate the speed of Mr. Willman's vehicle. Erica was allowed to testify as to other issues in the case.
A trial court's decision as to the admissibility of evidence is shown substantial deference on appeal. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). Such decision will not be disturbed on appeal absent a showing of abuse of discretion. Id. Where evidence is excluded, the issue is not whether the evidence was admissible but whether the trial court abused its discretion. Still v. Ahnemann, 984 S.W.2d 568, 572 (Mo. App. W.D. 1999); Howe v. ALD Servs., Inc., 941 S.W.2d 645, 653 (Mo. App. E.D. 1997). Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful deliberate consideration. Oldaker, 817 S.W.2d at 250. If reasonable people can differ about the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion. Newman v. Ford Motor Co., 975 S.W.2d 147, 151 (Mo. banc 1998).
The rate of speed at which an automobile is moving is not a matter exclusively for the testimony of experts. Messer v. Gentry, 220 Mo.App. 1294, 290 S.W. 1014 (Mo. App. 1927). Any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of a moving vehicle. Hewitt v. City of Kansas City, 761 S.W.2d 679, 681 (Mo. App. W.D. 1988); Ramirez v. Miska, 304 Minn. 4, 228 N.W.2d 871, 874 (Minn. 1975); 31 Am. Jur. 2d Expert and Opinion Evidence section 119 (1989). The brevity of a witness's observation of a vehicle does not destroy the admissibility of the witness's estimate of speed; rather, it goes to the weight and value of the witness's testimony. Vaeth v. Gegg, 486 S.W.2d 625, 627 (Mo. 1972); Hewitt, 761 S.W.2d at 681.
In Mr. Wall's offer of proof, eleven-year-old Erica testified that she did not have a driver's license and had never driven an automobile. She stated that she had occasionally looked at the speedometer of a moving car before the day of the accident but could only recall one instance. In that case, the car was travelling between 70 and 75 mph. She admitted that she could not recall a time when she observed the speedometer of a car travelling less than 40 mph. Erica further testified that shortly before the accident, she looked at the speedometer on her father's car and noticed that her father was driving between 65 and 70 mph. She stated that she saw the van that her father's car struck "maybe a second or less" before the accident. Regarding the speed of Mr. Willman's vehicle, Erica testified as follows:
Q (Defendant's Counsel): Can you give me an estimate based upon your observation of the speed of the van as to how fast it was going in relation to the speed that your father's car was going?
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