Luther Ray HOLLINGSWORTH, on Behalf of Himself & Heirs of Rita Sue Hollingsworth v. BOVAIRD SUPPLY CO., 465 So. 2d 311

DAN M. LEE, Justice, for the Court: This is an appeal by Luther Ray Holl-ingsworth from a jury verdict in the Circuit Court of Wayne County in favor of the defendant/appellee, Bovaird Supply Co. This matter arises from a rural traffic accident in which Hollingsworth’s wife was killed when her car struck a pickup truck driven by Anthony Frasier while in the scope of his employment for Boviard Supply Co. On this appeal we are again asked to address the admissibility of an accident reconstruction expert.

By today’s decision we are announcing that Mississippi jurisprudence recognizes the significant advancement of scientific study in this field and the admissibility of such an expert’s testimony. THE FACTS On December 22, 1979, at approximately 11:35 a.m., a collision occurred on Old Highway 84 in Wayne County between Rita Hollingsworth and Anthony Frasier. The evidence showed that the pickup truck driven by Anthony Frasier, in which his wife was a passenger, was headed west on Highway 84 and a 1977 Mercury driven by Mrs. Hollingsworth was traveling east.

Frasier testified that when he first spotted the Mercury it was approximately 150 paces away. In his opinion the Mercury traveled 90 paces to the point of impact and his pickup truck traveled 60 paces to arrive at the point of impact. Mr. Frasier did not see the Mercury earlier because his vision was obscured by a curve in the road. According to Frasier, the Mercury began to cross the imaginary center line of the highway (there was no actual painted center line on Highway 84) and as it got close to the pickup truck, the Mercury swerved and came at the truck sideways, with its left side toward the pickup truck.

Mr. Frasier testified that when he saw the Mercury crossing the center of the pavement he slowed and turned to his right in order to avoid the collision. He stated that he was traveling 30 miles per hour when he saw the Mercury but he had slowed to a virtual stop by the time the impact occurred. Mrs. Frasier corroborated her husband’s version of the accident. Because Mrs. Hollingsworth was killed in the accident, the Frasiers were the only eyewitnesses to the collision. At impact both vehicles spun counterclockwise and the pickup truck came to a stop at or near the point of impact.

Damage to the Mercury was to its left side from the driver’s door to the rear of the car. Damage to the pickup truck was to its left front area. Constable Lamar West was one of the first to arrive on the scene. He testified that he saw a scrape mark on the highway that looked like the pickup truck’s tire had blown out and the wheel rim had gouged the pavement. The mark extended outward from the left front wheel rim of the pickup truck which had come to rest on the south half of the road. The proper half of the road for the Mercury traveling east was the south half.

The Constable also stated that he saw debris on the south half of the road but none on the north half. Sheriff Marvin Ferrior investigated the accident. He testified that he did not see gouge marks on the blacktop. All evidence indicated that it had been raining at the time of the accident. Luther Hollingsworth, Mrs. Hollings-worth’s husband, testified that he visited the scene at about 3:00 p.m. the day of the accident. He stated that he observed a gouge mark in the pavement from a little bit south of the center of the road up to the left front wheel of the pickup truck.

At trial, Hollingsworth’s attorney attempted to offer the testimony of Albert Medina, a traffic accident consultant. The record established that Mr. Medina is highly educated and experienced in traffic accident reconstruction both from theoretical and practical training. Among Mr.

Medina’s qualifications are the rank of instructor at the Traffic Institute, Northwestern University, vast experience in police department investigating and reconstructing traffic accidents, experience gained at the Ford, General Motors and Chrysler Proving Grounds, and in teaching traffic accident reconstruction in approximately thirty-five states. Mr. Medina has also graduated courses in mathematics and vehicle dynamics, fields of study essential to the understanding of the reaction of vehicles when eccentric force is applied to them.

The circuit court sustained objections to questions intended to lay the foundation for Mr. Medina’s status as an expert witness. On proffer, Mr. Medina testified that based on his education, experience and investigation, the point of impact was on the south side of Highway 84. This was the proper portion of the road for Mrs. Holl-ingsworth’s eastbound Mercury. Mr. Medina stated that if he assumed Mr.

Frasier’s testimony as true, that is, the pickup truck was almost stopped at the north edge of the road and darted northward to avoid the collision, there would have been no way the vehicles could have come to rest the way they did. According to Mr. Medina, if Mr. Frasier’s description was accurate, the pickup truck would have come to rest off the road on the north side. Without the benefit of Mr. Medina’s testimony the jury returned a verdict for the defense. It is from that verdict that Mr. Hollingsworth brings this appeal. THE LAW The law must be both a stable and a dynamic thing.

It must be stable so that we, as citizens, are able to understand it, to stay within its confines and to predict its reaction. Stability contributes respect for the law and the notion that all who come under it are treated equally. Stability in the pronouncement of legal doctrine must be as reliable as the surf which pounds against a rocky coast. Nevertheless, just as the surf will eventually redefine that rocky coast, the law cannot remain unchanged against waves of reason and progress. As stability brings respect for the law, even more so does reason.

Reason cannot be a static thing for the waters of progress erode yesterday’s context and shape tomorrow’s reality. Prior to today’s decision, this Court has stood firmly behind the rule which prohibits an accident reconstruction expert from giving his opinion on how an accident happened, the point of impact, the angle of travel, the responsibility of the parties involved or the

interpretation of photographs. Arrow Food Distributors, Inc. v. Love, 361 So.2d 324 (Miss.1978); Lynch v. Suthoff, 220 So.2d 593 (Miss.1969); Jones v. Welford, 215 So.2d 240 (Miss.1968); Marsh v. Johnson, 209 So.2d 906 (Miss. 1968); Hollifield v. Nester Chevrolet Co., 207 So.2d 636 (Miss.1968); Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627 (1961); Delta Chevrolet Company v. Waid, 211 Miss. 256, 51 So.2d 443 (1951); Standard Oil Company v. Crain, 199 Miss. 69, 23 So.2d 297 (1945); Columbus and Greenville Railway Co. v. Robinson, 189 Miss. 675, 198 So. 749 (1940). In Hagan Storm Fence Co. v.

Edwards, 245 Miss. 487, 148 So.2d 693 (1963), there was a two-car intersection collision in which drivers of both cars suffered amnesia and could not recall anything about how the accident occurred. The plaintiff called an automotive engineer to testify as an expert in accident reconstruction. The expert placed responsibility for the accident on the ear driven by the fence company employee. He based his testimony on the position and angle of the automobiles related to him by others and from post accident photographs.

In a five to four decision, this Court held that the admission of the expert’s testimony amounted to “an invasion of the province of the jury” and reversed the case. From our study of the rationale of the Hagan decision and the state of the art of the science of accident reconstruction we are of the opinion that Hagan and its progeny must be overruled.

We agree with the Hagan opinion insofar as it asserts that the function of the jury as finders of fact must not be usurped; however, we disagree that allowing an expert accident reconstructionist to testify as to the post impact reaction of vehicles is such an usurpation. An expert’s qualifications and the basis of his conclusions are open to cross-examination. The jury, as is their province, may reject the expert’s testimony just as they might any other witness.

See note, Expert Testimony May Invade Province of the Jury, 35 Miss.Law Journal, 312. (March, 1964) and 1 Lacy, Scientific Automobile Accident Reconstruction, pp. 1-4 (1981). Furthermore, like any other witness offered as an expert, the trial judge is called upon to exercise his sound discretion in determining whether the witness is legitimately qualified as an expert in the applicable fields of scientific knowledge. See Pharr v. Anderson, 436 So.2d 1357, 1359 (Miss.1983). In addition, it has become a matter of routine to permit expert witnesses in scores of different types of cases. See Cain v.

Mid-South Pump Co. 458 So.2d 1048 (Miss.1984) (expert on digging water wells); Stubblefield v. Jesco, 464 So.2d 47 (Miss.1984) (grain mill explosion); Thompson v. State, 457 So.2d 953 (Miss. 1984) (handwriting); Enlargement of Yazoo City v. Yazoo City, 452 So.2d 837 (Miss.1984) (municipal annexation); Williams v. State, 445 So.2d 798 (Miss.1984) (ballistics); Mississippi Public Service Commission v. Mississippi Power Company, 429 So.2d 883 (Miss.1983) (public utility rate increase); Schoppe v. Allied Chemicals Division, etc., 418 So.2d 833 (Miss. 1982) (agricultural damage); Edwards v.

Harper, 354 So.2d 256 (Miss.1978) (property appraisal); Early-Gary, Inc. v. Walters, 294 So.2d 181 (Miss.1974) (ceramic engineering); Chapman v. Carlson, 240 So.2d 263 (Miss.1970) (medical malpractice). In the years following the Hagan decision, a majority of American jurisdictions now permit the use of expert accident reconstruction opinion. See cases annotated in 9C Blanchfield Cyclopedia of Automobile Practice, § 6316 (Supp.1964), at 122-124; e.g. Waldron v. Raccio, 166 Conn. 608, 353 A.2d 770 (1974); Moyer v. Clark, 75 Wash.2d 800, 454 P.2d 374 (1969); Parker v. Hohman, 250 A.2d 698 (Me.1969); State v.

Stoddard, 147 Mont. 402, 412 P.2d 827 (1966); Franks Plastering Co. v. Koenig, 341 F.2d 257 (8th Cir.1965), interpreting Nebraska law; Dudek v. Popp, 373 Mich. 300, 129 N.W.2d 393 (1964); Mayeaux v. American Mutual Liberty Insurance Corp., 409 F.2d 508 (5th Cir.1969), interpreting Louisiana law.

Furthermore, in a concurring opinion in Hagan, Justice Gillespie acknowledged that “When the time comes that such expert can demonstrate that he can reliably deduce the relative speed of two vehicles to a differential of five miles an hour, the angle of the vehicles at impact, and what diverted their courses, then such testimony ought to be admitted.” 245 Miss. at 495, 148 So.2d at 701. In a dissenting opinion Justice Jones had this to say about the rule of law announced in Hagan: The majority opinion suggests that it would invade the province of the jury to admit expert testimony in automobile cases.

But this reasoning begs the question, because there are many instances where expert opinion has been permitted to aid the jury. This would include medical questions of causation, the testimony of handwriting experts, ballistics experts, property appraisers. Nor will such evidence necessarily turn into a clash of partisan experts. The automotive engineer is not subject to the same partisan pressures to which an attending physician may be subject. Moreover, the ability to apply the laws of motion is distinctly much more of an exact science than the art of expressing an opinion on a question of medical causation.

In the search for truth, the court should permit the use of adequately qualified experts in any area where scientific evaluation would be of assistance to the jury. Yet, unfortunately, the controlling opinion rejects the testimony of an experienced, qualified automobile engineer where there are no available eye witnesses. 245 Miss. at 504, 505, 148 So.2d at 700. Although we are overruling the Hagan decision and its progeny, today’s decision should not be viewed as a complete departure from this Court’s judicial philosophy.

The rule we are announcing today does no more than put automobile collision litigants on equal footing with nearly all of the other litigants availing themselves of our state court system. As previously stated the jury remains the ultimate finder of fact, the only difference is that now a properly qualified and examined expert witness may provide them with testimony which is potentially helpful in deciding those issues of ultimate fact. Therefore, we hereby reverse and remand this cause to the Circuit Court of Wayne County for proceedings consistent with this opinion. REVERSED AND REMANDED.

PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur. PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, J„ dissent.