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Wagner v. Barbee9/2/1986
By assignment of error No. 1, defendant contends that the trial court erred in admitting the opinion testimony of Brian Rowe, the police officer who investigated the accident, in regard to where the point of impact of the vehicles occurred on the highway. Assuming that the trial court erred in this regard as defendant contends, this error was clearly not prejudicial because all the parties agreed at trial that the collision occurred in the east lane of Highway 58 in accordance with Officer Rowe's testimony.
Defendant next contends that the trial court erred in admitting the opinion testimony of Officer Rowe about how the accident occurred. In response to defense counsel's question on cross-examination regarding the damage to the motorcycle, Officer Rowe testified that " f he [defendant] was going down the road and swerved off to the right-hand side of the road, it would hit it just like just the way it appears in these pictures." This testimony corroborates the testimony of defendant that he turned the car to the right to try and avoid hitting the motorcycle. Thus, defendant has again failed to show that he was prejudiced by Officer Rowe's testimony.
Defendant next contends that the trial court erred in admitting the opinion testimony of Dr. Nicholson regarding the blood alcohol level of plaintiff Wagner when she was taken to the hospital following the accident. Defendant argues that the doctor was not qualified to give an opinion on this matter, because he responded to the request for his opinion as follows: "I am not a pathologist who specializes in these tests and I don't know the technique required, but I rely upon my pathological colleagues." Over defendant's objection, Dr. Nicholson was allowed to testify that in his opinion Wagner's test indicating the alcohol level in her blood was a mistake because it was so high and to explain how such a mistake could have been made. Again, assuming for
the sake of argument that the trial court erred in overruling defendant's objection, defendant has failed to demonstrate that this error was prejudicial. Defendant does not argue, nor is there any evidence tending to show, that the high blood alcohol content of plaintiff Wagner, who was a passenger on the motorcycle, in any way caused the accident or contributed to her injuries. This assignment of error is overruled.
By assignments of error Nos. 4 and 6, defendant contends that the trial court erred in admitting testimony and a criminal citation showing that defendant was charged as a result of the accident with operating a motor vehicle while under the influence of an intoxicating beverage. Once again, defendant has failed to show that the ruling of the trial court, if erroneous, was prejudicial. Defendant concedes that testimony that he pleaded guilty to the charge arising out of this incident of reckless driving after consumption of an alcoholic beverage was admissible. Officer Rowe testified that in his opinion defendant was under the influence of an alcoholic beverage at the scene of the accident and had appeared intoxicated at a bar where the officer saw him two hours before the accident. The breathalyzer operator who administered the breathalyzer test after defendant's arrest also testified that defendant appeared to be intoxicated and that defendant's blood alcohol level was 0.12. Given all of the evidence tending to show that defendant was intoxicated when the accident occurred, defendant could not have been prejudiced by evidence that he was charged with driving under the influence of an intoxicating beverage.
Defendant next contends that the trial court erred in refusing to admit evidence relating to plaintiff Wagner's intoxication on two occas
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