The opinion of the court was delivered by: Pittman, Presiding Justice
DATE OF JUDGMENT: 05/08/96
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 10/15/98
MOTION FOR REHEARING FILED:
¶1. This case arises out of a one-car accident that occurred in Oktibbeha County on October 5, 1992. The plaintiff, Beverly Ann Upchurch, (Upchurch) filed a Complaint against the defendant, Teresa Rotenberry (Teresa) and her father, Walter Rotenberry (Walter) on October 3, 1993. The suit was filed as a result of the alleged negligence of Teresa. The Complaint alleges that Teresa negligently lost control of her vehicle while driving on Highway 182 in Oktibbeha County, Mississippi, which resulted in the death of plaintiff's son, Timothy Adam Upchurch (Adam). The Complaint further alleged that the defendant's father was guilty of negligent entrustment of the vehicle. More specifically, the Complaint alleges that Teresa is guilty of violating Mississippi Code Annotated § 63-3-501 regarding speeding, §63-3-1201 with regard to reckless driving and § 63-11-30 in that she operated her vehicle while under the influence of an intoxicating liquor.
¶2. Walter and Teresa both filed an Answer to the Complaint joining issue on all material allegations . An Order of Non-suit Without Prejudice was entered in favor of Walter on May 20, 1994, and he ceased to be a party in this action.
¶3. This case was tried in Oktibbeha County Circuit Court on the 22nd, 23rd, and 29th days of April, 1996. The defendant moved for a directed verdict at the close of plaintiff's proof which was denied. The jury returned a verdict in favor of the defendant.
¶4. Plaintiff filed a Motion for Judgment Notwithstanding The Verdict Or In The Alternative For New Trial on May 15, 1996. The defendant filed a Response to plaintiff's Motion on May 22, 1996. On September 23, 1996, Judge Lee J. Howard entered an Order Overruling Plaintiff's Motion For Judgment Notwithstanding The Verdict Or In The Alternative For A New Trial.
¶5. Plaintiff timely filed Notice Of Appeal to this Court on October 11, 1996. The appeal from the verdict of the Oktibbeha County Circuit Court jury and from the denial of the Motion for Judgment Notwithstanding The Verdict Or In The Alternative For A New Trial raises the following issues:
I. THE TRIAL COURT ERRED IN NOT GRANTING THE PLAINTIFF'S MOTION FOR A DIRECTED VERDICT.
II. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE FOR A NEW TRIAL.
III. THE JURY'S VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
IV. THE COURT ERRED IN NOT ALLOWING EXPERT TESTIMONY ON THE ISSUE OF LOSS OF ENJOYMENT OF LIFE DAMAGES.
¶6. While the facts of this case are not necessarily disputed, this case is certainly not without evidentiary difficulties. The case at bar is a perfect example of "he said, she said," with regard to the investigations and testimonies of the plaintiff's and defendant's experts.
¶7. On the night of October 5, 1992, the decedent, Timothy Adam Upchurch, was riding in the passenger seat of Teresa Rotenberry's car while Teresa was driving. Adam was the only passenger in the car. The car was traveling west on Highway 182 in Oktibbeha County, Mississippi when Teresa lost control of her vehicle. The plaintiff in this case claims Teresa left the road suddenly without warning, causing injuries and damages to the decedent that resulted in his death. Teresa, however, maintains that she saw a small animal and swerving to avoid hitting it, left the road and lost control of her car. The vehicle struck a tree on the side of the road, and Adam Upchurch was killed. There were no eyewitnesses to the collision.
¶8. The plaintiff presented three witnesses on the issue of liability: Kirk Rosenhan, Larry Guyton and Teresa Rotenberry, who was called as an adverse witness.
¶9. Kirk Rosenhan is a part-time instructor in engineering mechanics at Mississippi State University. He is also a fire services coordinator for Oktibbeha County. Mr. Rosenhan came to the accident scene in his capacity as fire services coordinator. He surveyed the scene, including the roadway and the area between the point where the vehicle left the road and where it struck the tree. Mr. Rosenhan testified at trial as both an accident reconstructionist and a fact witness to the accident investigation. He testified that according to the absence of markings he observed, Teresa's vehicle traveled in a straight line from the point it left the road to the point it hit the tree. Mr. Rosenhan testified that on the night of the accident he walked the area with lights and could find no scuff marks or skid marks on the road. Mr. Rosenhan further testified that he estimated the speed of Teresa's vehicle to be 60 mph when it struck the tree. Finally, Mr. Rosenhan testified that the vehicle traveled 160 yards after leaving the road and before making impact with the tree. Mr. Rosenhan opined that Teresa had sufficient time to react once the vehicle left the roadway before it hit the tree.
¶10. The speed the vehicle was traveling when it struck the tree, as well as, whether the vehicle left any marks either on the roadway or the area between leaving the road and striking the tree is also disputed in this case. The expert for the defense, Thomas Shaeffer, testified that there were tire marks which began on the road and proceeded off the road, through the grass, and down toward the tree. Mr. Shaeffer identified these marks as Yaw marks. Shaeffer defines yaw marks as a mark a tire makes when it is still rotating but not traveling in the direction that it is oriented. In other words,
if you're driving down the road and you - you steer to one direction, the tires are going to go where the steering wheel tells them to go, but the car may not be able to maneuver as quickly as you, uh - as your steering angle that you've just input it, so the tires are still turning, but they're sliding sideways a little bit and what happens then is it typically leaves a - a narrow black mark called a yaw mark on the road surface if it's paved or some sort of concrete surface or something like that.
On direct examination, Mr. Shaeffer testified that the car was traveling approximately 25 to 35 mph when it hit the tree. However, on cross examination, Mr. Shaeffer testified that the car was going 42 to 50 mph when it made impact with the tree.
¶11. The defendant introduced into evidence photographs to corroborate the Conclusions of Mr. Shaeffer. This Court notes, however, that while the plaintiff introduced photos of the vehicle during direct examination of Mr. Rosenhan, there were no photos depicting the accident scene either marked for identification or introduced into evidence. When the defendant's counsel asked Mr. Rosenhan whether he had seen any photographs of the accident scene, he replied, "[I] took them." Mr. Rosenhan further testified that he had not seen the photographs of the accident scene, which showed the tire marks, taken by Mr. Shaeffer.
¶12. Mr. Shaeffer also testified that he observed small pebbles wedged between the rim and tire on both the front left and rear left wheels of the vehicle. This is additional evidence that the vehicle made an extreme right hand turn. All of the evidence presented at trial by Mr. Shaeffer was consistent with the vehicle making an evasive maneuver to the right in order to avoid an object on the roadway. Mr. Shaeffer's final determination was that the car struck the tree and flipped over on its top, which undoubtedly caused additional damage to the vehicle.
¶13. Teresa Rotenberry testified as an adverse witness for the plaintiff. Throughout the discovery proceedings and at the trial itself, Teresa testified that she could not remember the events leading up to the accident including a two-day period just prior to the accident. However, on November 13, 1992 (about 5 weeks after the accident), Teresa did sign a written statement detailing the accident. In this statement, Teresa testified that a large animal, either a deer or a dog, ran across the road and into her ...