                              No.    91-202

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991



BRUCE R. CAMPBELL, as the father of CASSIE CAMPBELL, a minor; and
CASSIE CAMPBELL, a minor by and through BRUCE R. CAMPBELL, her next
friend ,
            Plaintiffs and Appellants,
     -vs-
JEFFREY DEAN JOHNSON.




APPEAL FROM:    District Court of the Seventh Judicial District,
                In and for the County of Richland,
                The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Douglas C. Allen, Attorney at Law, Great Falls,
                Montana;    Douglas D. Howard, Heard & Howard,
                Columbus, Montana.
            For Respondent:
                Dane C. Schofield, Peterson     &   Schofield, Billings,
                Montana.


                               Submitted on briefs:     August 15, 1991
                                              Decided: December 12, 1991
Filed:


                                     /
                                    Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

     Plaintiff, Cassie Campbell (Campbell) brought a negligence
action against the defendant, Jeffrey Dean Johnson (Johnson) as a
result of an auto-pedestrian accident.     A jury in the Seventh
Judicial District Court, Richland County, Montana        found that
Johnson was not negligent.   Campbell appeals.   We affirm.
     The following issues are brought by the plaintiff on appeal:
     1.   Was it error for the investigating officer to offer
opinion testimony regarding the cause of the accident?
     2.   Was it reversible error for the investigating officer to
offer opinion testimony regarding the unsafe behavior of another
driver?
     On February 28, 1987, while Campbell was crossing in the
middle of the 400 block of South Central Avenue, in Sidney,
Montana, Campbell and Johnson's vehicle collided.    Central Avenue
is a four lane street with a parking lane on both sides running
north and south.   The 400 block on Central Avenue has a traffic
light at the intersection to the south, and a crosswalk at the
intersection to the north.
     Just prior to the accident Johnson was driving his car in the
left southbound lane of Central Avenue.      Although Johnson saw
Campbell by the curb waiting to cross the street, he looked away
before she stepped into the street.   Campbell stated that she did
not see Johnson's car before stepping into the street.        Campbell
safely crossed the right southbound lane, then stepped into the
left southbound lane and into the right front fender of Johnson's
                                 2
car.   Campbell was twelve years old at the time of the accident.
       The investigating officer, Dennis Palmer (Palmer) of the
Sidney police department, testified that when he arrived at the
scene, Johnson had moved his car and Campbell was lying in the
street in the right southbound traffic lane about fifteen feet from
the curb.     Palmer testified that no skid marks appeared on the
roadway, indicating that Johnson did not apply his brakes.
Similarly, he found no scuff marks from the collision.         Palmer
examined the bent radio antenna, the windshield          damage, the
position of dents on Johnson's vehicle as well as the right front
fender where accumulated road film and dust were disturbed. Palmer
measured Campbell's position in the street and the placement of her
injuries.     From this investigation Palmer testified as to his
conclusion that the point of contact was the right front fender of
Johnson's vehicle.
       Palmer also obtained statements from Campbell, Johnson and
several eye witnesses to the accident.    Palmer testified that the
witness     statements were   consistent with   his   conclusion that
Campbell impacted with the right front fender of the vehicle.     An
eye witness to the accident, David Reidle (Reidle), was driving in
the left northbound lane.       According to his statement, Reidle
observed Campbell waiting to cross the street and stopped his
vehicle in the middle of the block to allow Campbell to cross.
       At   the   trial, over objection of   the plaintiff, Palmer
testified that in his opinion "the accident was caused by the
sudden movement of the pedestrian in the middle of the block out


                                   3
into the traveled portion of the road."         This testimony is the
basis for the first claimed error.         Palmer also testified over
objection that in his opinion, it was unsafe for Reidle to stop his
vehicle in the middle of the block.        "It leads people to believe
that traffic is going to stop for them in the middle of the block."
This testimony is the claimed basis for the second error.


     Was it error for the investigating officer to offer opinion
testimony regarding the cause of the accident?
     Appellant contends that Palmer's opinion testimony regarding
the cause of the accident was inadmissible under Smith v. Rorvik
(1988),   231 Mont. 85, 751 P.2d       1053.   Smith involved an auto-
pedestrian   accident where   the defendant       failed   to   list the
investigating officer as an expert prior to trial.         In that case,
this Court held that it was error to allow the officer to offer his
opinion as to the negligence of one of the parties.
     Clearly, this case is distinguishable from Smith.             Here,
Palmer's testimony concerned the cause of the accident, not the
negligence of the parties.    Further in this case, Johnson listed
Palmer as an expert prior to trial.       In Smith this Court concluded
that because the officer was not listed as an expert prior to
trial, the plaintiff lacked adequate opportunity to challenge the
basis of the officer's opinion.
     Upon proper requests by Smith through interrogatories
     that Rorvik identify any expert witnesses, it became the
     duty of Rorvik to identify those witnesses, including the
     highway patrolman before trial. (A proper disclosure by
     Rorvik of the intention to call the patrolman as an
     expert on civil liability would have warned Smith and led
                                   4
      to probable further motions to the court respecting the
      foundation for the patrolman's        testimony as an
      expert.)  ...If the information obtained by the patrolman
      throuqh his investiqation were insufficient for him to
      form an opinion as an expert, the lack of foundation to
      qualify him for his opinion would be an issue for
      determination. [Citations omitted]. (Emphasis supplied.)

-,
Smith     751 P.2d at 1056.

      We do not conclude that Palmer is barred from testifying under
_Smith.   Here Johnson identified Palmer as an expert prior to trial
and Campbell twice challengedthe foundation of Palmer's opinion by
requesting the court exclude Palmer's testimony regarding the cause
of the accident. Campbell engaged in extended cross-examination of
witness Palmer.       In denying Campbell's pretrial motion in limine
and her objection at trial, the trial court found that Palmer had
sufficient information to testify as an expert regarding the cause
of the accident.

      We agree with the trial court's holding. Palmer investigated
the accident by measuring Campbell's         position in the roadway,
examining Campbell's injuries as well as the antenna, windshield,
dents, and the places on Johnson's         fender where dust had been
disturbed.     In addition, he found no skid marks to indicate that
Johnson applied his brakes prior to impact.          After examining the
physical     evidence    and   obtaining   witness   statements,   Palmer
determined Campbell's point of impact with the car and concluded
that Campbell caused the accident by colliding with the right front
fender of Johnson's car.
        Defendant asserts that this Court should defer to the ruling
of the trial court which allowed the opinion testimony, citing
                                     5
Cline v. Durden (1990), 246 Mont. 154, 803 P.2d         1077.   Cline
stated:
        ...
         Under the Montana Rules of Evidence, the trial court
      is qiven wide latitude in determinina whether to admit
      opinion testimony of investiqative officers. Leeway is
      allowed in such instances, and provided that the cross-
      examiner is qiven adequate opportunity to elicit anv
      assumptions or facts underlvins the expert’s opinion, the
      weight to be given the testimony is for the trier of fact
      to determine. [Citations omitted.] (Emphasis supplied.)
Cline
- I       803 P.2d at 1080.

      Under Cline the trial court here was given wide latitude in
determining whether to admit opinion evidence of the investigative
officer.      Palmer testified that he studied accident investigation
during basic training at the Montana Law Enforcement Academy.
After six years as a law enforcement officer, Palmer investigated
approximately 200 accidents prior to this accident.      The evidence
obtained by witness Palmer during his investigation, coupled with
his experience in accident investigation, provided a sufficient
basis     for the court to determine that Palmer had         a proper
foundation to testify.        As in Cline, the record indicates that
Campbell cross-examined Palmer to elicit the assumptions and facts
underlying his opinion testimony.       We conclude the District Court
properly admitted the opinion testimony.      We hold that it was not
error to allow the investigating officer to offer opinion testimony
regarding the cause of the accident.
      We point out that in the present case, Campbell filed the
 appeal based on a partial trial transcript which contained only the
testimony before the District Court on the part of Officer Palmer.
 It did not contain any of the testimony of other witnesses.      The
                                    6
record does include minute entries made by the clerk which contain
a summary of the testimony of some of the witnesses.             As a result
we are not able to compare the testimony on the part of other
witnesses to the transcribed testimony of Officer Palmer.
                                   I1
     Was it reversible error for the investigating officer to offer
opinion testimony regarding the unsafe behavior of a non-party
driver?
     Appellant contends Palmer's testimony that it was unsafe for
Mr. Reidle to stop his vehicle in the middle of the block to allow
Campbell to cross was irrelevant, conclusory and prejudicial to
Campbell's    case.      Johnson   contends     that    this    argument   is
speculative and urges this Court to uphold the findings of the
District Court when it stated:
     While the conduct of Mr. Reidle does not appear to have
     anything to do with the accident itself, Plaintiffs
     speculate that any comment concerning the propriety of
     his [Reidle's] actions may have been given great weight
     by the jury. However, there is nothing to indicate that
     the jury accorded any significant weight to such comment.
     To grant a new trial only on the basis of this argument
     would be speculation on the part of the Court.
We conclude that the District Court correctly characterized the
plaintiff's   argument    as   speculative and         that    the   testimony
regarding the propriety of the conduct of a non-party witness did
not prejudice Campbell's       case.       Campbell failed to offer any
evidence tending to show that the testimony was significant.
     We hold that it was not reversible error for the trial court
to allow the officer to offer opinion testimony on the propriety of
Reidle's conduct.
                                       7
     Affirmed.



We Concur:




             Justices




                        8
Justice Terry N. Trieweiler dissenting.
     I dissent from the opinion of the majority.
     This Court has gotten to the point where it automatically
admits opinion testimony of law enforcement personnel in auto
accident cases without adequate scrutiny of whether the testimony
serves any of the purposes for which opinion testimony is normally
allowed.
     This is a simple case.    Cassie Campbell was attempting to
cross the highway when she was either struck by or ran into the
vehicle being driven by the defendant.    The issue is whether she
negligently ran out into the street, or whether the defendant was
negligent by failing to observe her and have his vehicle under
sufficient control so that he could avoid her.       If both were
negligent, the issue was then how their negligence compared.
     Including the parties, eight people witnessed the accident.
The investigating officer, Dennis Palmer, was not one of them.
     Some or all of these witnesses testified before the jury
regarding their direct observations of how the accident occurred.
Officer Palmer's investigation and subsequent opinion based on that
investigation added nothing to the direct observations of these
witnesses.   A s will be shown, his opinion was based primarily on

what he was told by the same witnesses who testified at trial.
     When Officer Palmer arrived at the scene of the accident, the
victim was lying in the street.      The vehicle with which she
collided had been moved and was parked further to the south.     He
                                9
marked her location on the street and called in another officer who
took photographs of the vehicle. He also recorded the names of the
people who had witnessed the accident and later took statements
from each of them.
     Officer Palmer testified that normally if there are skid marks
at an accident scene he can determine speed and direction from
observing and measuring them.    However, he could not find any skid
marks at this accident scene.
     He testified that he normally determines the point of impact
from debris left on the road, but at this accident scene he found
neither scuff marks nor debris in the vicinity where the accident
occurred. Therefore, he was unable to determine a point of impact.
     He examined the defendant's automobile for damage, and based
upon the damage that he observed, he determined the point where the
victim's body collided with the defendant's vehicle. However, what
he observed added nothing to what he had already been told by the
witnesses to the accident.      Furthermore, he could not tell from
looking at the car whether the victim stepped into the car, ran
into the car, or was merely standing in the street when she was
struck by the car.
     His entire investigation consisted of interviewing witnesses,
observing the vehicle, looking for skid marks and debris, and
observing the whereabouts of the victim when he arrived. However,
it was clear that the only part of that investigation which in any


                                  10
way enlightened him about how the accident occurred, was his
interview of the witnesses.
    Although he had training and qualifications which would have
enabled him to estimate speed and identify a point of impact if
sufficient physical evidence had been available, none of that
evidence was available.   There was nothing in his background or
training which enabled him to draw any better conclusion from
having interviewed the witnesses than the jury was able to draw
from listening to those same witnesses.    In spite of these facts
and this lack of foundation, he was allowed to express the
following opinion during the trial:
     It's my opinion that the accident was caused by the
     sudden movement of the pedestrian in the middle of the
     block out into the traveled portion of the road.
     Whether Officer Palmer was qualified as an expert in this case
requires an analysis of more than whether he was a law enforcement
person who investigated an accident.    It requires an analysis of
our rules regarding opinion evidence and how they apply to the
facts in this case. Rule 702, M.R.Evid., controls. It provides as
follows:
     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.
     There was no scientific, technical, or other specialized
knowledge which formed the basis for Officer Palmer's opinion. H i s

                                 11
opinion was based exclusively on what he was told by the witnesses
he interviewed.
     This case is similar to Pbyliarv. Boardof Tmtees (1980), 187 Mont.

363, 609 P.2d 1226.   In that case, the victim of the accident was
a student at Missoula Technical Center and enrolled in a heavy
equipment operation class.     At the time of the accident, he was
working behind a Caterpillar being operated by another student when
the Caterpillar reversed direction and ran over and crushed him.
The victim's    family sued    the school district      for dangerous
supervision and operation of the class.
     One of the instructors at the school was called as a witness
at trial, and on cross-examination was allowed to give his opinion
regarding the cause of the accident.       We held that such opinion
testimony was inappropriate and a basis for a new trial.        In that
opinion, we reached the following conclusion which is relevant to
this case:
     Simms gave his opinion as to the proximate cause of the
     accident. Opinion evidence concerning the cause of an
     accident is admissible only if the subject matter is
     beyond the ordinary understanding of the jury. See Ziegler
     v Crofoot (1973), 213 Kan. 480, 516 P.2d 954. The cause of
     .
     the accident must be sufficiently complex to require
     explanation. See McGuire v. Nelson (1975), 167 Mont. 188,
     536 P.2d 767; Mnssoiii v Stute Higllway Commission (1974), 214
                             .
     Kan. 844, 522 P.2d 973, 979. See also Dobkowski v. Lowers,
     hlc. (111.C.A. 1974), 2 0 111.App.3d 275, 314 N.E.2d 623.
     Here, there was no need for such testimony. The accident
     was relatively simple. It involved a single tractor, and
     the actions of only two individuals, the driver of the
     tractor and the accident victim. At trial, an eyewitness
     gave his description of the accident, and other witnesses

                                  12
     testified concerning the actions of the tractor driver
     and the decedent. This evidence appears to be sufficient
     to allow the jury to make an independent judgment as to
     the ultimate cause of the accident. Thus, we conclude
     there was no abuse of discretion in determining that
     opinion testimony was not needed here.
     The Board contends that Simms' testimony was not
     prejudicial to the plaintiffs' case. However, the extent
     to which the deceased's own actions caused the accident
     was obviously a crucial part of the Board's defense. No
     other witnesses gave their opinion as to the cause of the
     accident. These circumstances support the trial court's
     conclusion that Simms' testimony was manifestly
     prejudicial to the plaintiff's case.
Ployhar, 609 P.2d at 1228.

     We excluded opinion evidence for similar reasons in State v.

ffoward (1981), 195 Mont. 400,       637   P.2d 15.   In that case, the

defendant was charged with attempted homicide and other crimes of
violence against the victim. The physician who attended the victim
in the emergency room at the hospital testified about strangulation
marks on her neck and other bruises and damage that he observed on
her body.    In addition, he was allowed to express his opinion that
the force which caused the marks he observed was intended to cause
her death.    We held that whether he could express such an opinion
depended on Rule   702   set forth above, and we explained the test for
admissibility under Rule     702   as follows:
     Stated another way, the test is:
            'I. . . whether the subject is one of such
            common knowledge that men of ordinary
            education could reach a conclusion as
            intelligently as the witness, or whether the
            matter   is    sufficiently   beyond    common
            experience that the opinion of an expert would
                                     13
          assist the trier of fact."       State v. Campbell
          (1965), 146 Mont. 251, 258, 405 P.2d 978, 983.
     Dr. Elliott inferred from the nature of the injuries that
     the person who inflicted them did so with an intent to
     murder. We find that under the circumstances of this
     case, the jury was as qualified as the doctor to draw an
     inference from the circumstantial evidence as to intent,
     and therefore the doctor's opinion on intent was
     inadmissible under Rule 702, Montana Rules of Evidence.
Howard. 637 P.2d at 17.

     I find that both of these cases control the outcome in this

case. In this case, the jury was as qualified as Officer Palmer to
listen to the observations of the eyewitnesses to this accident and
determine whether the accident occurred because of the victim's
sudden movement into the street or because the defendant failed to
be sufficiently alert to avoid the victim when she crossed the
street.   The only things that Officer Palmer knew in addition to
what he was told by those witnesses were the victim's location when
he arrived at the scene and the location of damage to the
defendant's vehicle. However, none of that information contributed
to the opinion that he was allowed to express regarding the cause
of this accident.
     The majority relies on Clinev. Durden (1990), 246 Mont. 154, 803

P.2d 1077, as authority for the admission of Officer Palmer's
testimony. However, the only similarity between that case and this
case is that there was an opinion offered by a law enforcement
officer. That case did not involve a pedestrian-vehicle collision
on the main street through town in broad daylight with eight direct

                                  14
witnesses available to testify.     The Clirte case involved a head-on

snowmobile collision in the mountains.        The only two competent
witnesses were the plaintiff and his companion. The defendant had
no recollection of what happened due to the trauma that he
suffered. The only issue involved the orientation of the vehicles
and their direction of travel at the point of impact.               The
investigating officer was allowed to express an opinion on that
issue based upon physical evidence, including debris and spilled
gasoline found at the scene. The deputy's opinion in that case was
based directly upon his training in accident reconstruction, and
not on what he was told by any witness who testified at trial.
     What this Court has gotten in the habit of doing is simply
looking to see whether law enforcement personnel have training in
accident investigation and reconstruction, and then based on that
training, concluding that they are automatically qualified to
express an opinion at trial without looking to see if that opinion
is based upon the officer's training or experience.          For other
examples of such non sequitur analysis, see Foreman v. Minnie (1984),

211 Mont. 441, 689 P.2d 1210, and Scofield v. Estate of Wood (1984), 211

Mont. 59, 683 P.2d 1300.     This kind of analysis is inconsistent
with our rules for all other expert witnesses and should be
corrected.




                                  15
     The only thing that Officer Palmer added to this case beyond
what the eyewitnesses had to offer was his opinion and his uniform.
That was unfair.   I would reverse.



                                         J stice

     I concur in the foregoing dissent of Justice Trieweiler.




                                16
                                  December 12, 1991

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Douglas C. Allen
Attorney at Law
P.O. Box 2886
Great Falls, MT 59403

Douglas D. Howard
Heard & Howard
P.O. Box 926
Columbus, MT 59019

Dane C. Schofield
Peterson & Schofield
2906 Third Ave. No.
Billings, MT 59101

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                                          NTANA
