BEFORE ROY NOBLE LEE, C.J., PRATHER AND ZUCCARO, JJ.
PRATHER, JUSTICE, FOR THE COURT:
This appeal addresses the propriety of accident reconstruction testimony from police officers and to what extent an expert in accident reconstruction may give his opinion. The appeal is from a jury verdict in the Circuit Court of Jackson County in favor of the defendant, Stiglet, Inc., on the claims of the plaintiffs for personal injury and wrongful death. Suit was filed on February 16, 1984, and trial was held before the new Mississippi Rules of Evidence went into effect. On appeal, the following has been assigned as error:
(1) The trial court erred in allowing officers Mike Byrd and Bill Dillion to testify and give improper prejudicial opinion testimony as to the cause of the plaintiffs' accident, over plaintiffs' objection, entitling plaintiffs to a new trial.
(2) The trial court erred in allowing, over the objection of counsel for the plaintiffs, jury instruction DS-11 to be submitted to the jury regarding driving within
On February 16, 1984, Charlene L. Miller and others filed a complaint alleging, inter alia, that Stiglet, Inc. had a contract with the Mississippi State Highway Department for the purpose of sandblasting and painting the Escatawpa River bridge; that the work was discontinued on April 20,
1979; that on the morning of April 23, 1979, Miller, her two minor children and a neighbor's child, were riding in her car crossing the bridge in a safe and reasonable manner; that suddenly and without warning the car hit sand or paint left by Stiglet, which as a result of rain, caused the road surface to be extremely slick; and that Stiglet, was negligent in failing to properly clean off the bridge or in failing to inspect or give warning to the traveling public, thereby causing personal, physical and emotional injury to Miller and the death of all the children.
Miller testified that she left home about 7:00 a.m. o'clock, to take the children to school and stopped to get gas. Coming to the bridge, she noticed a bad place in the road and paint all over the bridge. Approaching the bridge at 20 miles per hour, her car started skidding from side to side, ultimately plunging into the river through a narrow opening in side of the bridge just large enough for a car to enter. She further stated that her car did not start sliding until she hit the bad paint place and the greasy place on the bridge.
On cross-examination, Miller's deposition was introduced, wherein she twice stated that she was going about 15 miles per hour as she approached the bridge, but the deposition twice contains the handwritten addition "or not over 30 mph," with Miller's initials. She also stated on deposition that she went into a big skid as soon as she hit a big bump or hump at the beginning of the bridge.
Records of the State Highway Department were admitted into evidence, showing that all operations of Stiglet were ceased on Friday, April 20, 1979, while the accident did not occur until three days later.
The plaintiffs then called Mike Byrd as an adverse witness. At the time of the accident, he was a patrolman in the traffic division and had been so for approximately one year. He and another officer were the first to arrive on the scene, he rescued an unconscious Charlene Miller from her car in the river, and they revived her. He observed sand on the bridge, thicker in some places than in others, with an inch deep rut in the sand on one side of the bridge. He also found "yaw" marks at the north end of the bridge that indicated skidding of a tire before the hump where the asphalt and concrete come together.
On cross-examination, Byrd stated that a yaw mark is made by a tire spinning not forward, but in a sliding motion from side to side. The yaw mark that he observed was located
before the car arrived at the superstructure or the steel portion of the bridge. He observed no paint on the bridge and no sand near the first hump.
As to his qualifications as an accidentologist, Byrd further testified that he has attended special schools concerning accident reconstruction and accident investigation, including the Northwestern Traffic Institute Accident Investigation School, from which he received a certificate of graduation. He had fourteen years experience as a police officer, during twelve of which he had worked accidents, investigating between four hundred and six hundred accidents. Initially, the trial court sustained the objection to Byrd testifying as an expert in accident reconstruction. After extensive argument on the point outside the presence of the jury, the trial court permitted Byrd to give expert opinion testimony, based on Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311 (Miss. 1985). The court found that Byrd's training and years of experience qualified him to give his expert opinion in this case. Afterwards, on voir dire examination, Byrd stated that he did not make any measurements of skid marks or any other measurements at the accident scene.
The cross-examination then continued, with Byrd stating, "After looking at the road conditions, the weather conditions, and the equipment on the car, it was determined to me that the cause of the accident was the rain, the slick tires on the car, and speed." He observed there was just wet pavement, but no paint or sand between the bump and the bridge, and that all of Miller's tires were slick.
In his opinion, the vehicle rounded the curve approaching the bridge exceeding the speed limit, which was 30 mph, and hit the first hump which caused her car to come up in the air. When she came back down, her vehicle skidded over to the left lane from her tires being slick. She then struck the superstructure of the bridge on the right and then again on the left across from the ...