462 S.W.2d 205 (Ark. 1971), 5--5364, Woodward v. Blythe

Docket Nº:5--5364.
Citation:462 S.W.2d 205, 249 Ark. 793
Opinion Judge:[20] The opinion of the court was delivered by: Frank Holt, Justice.
Party Name:James H. WOODWARD, Appellant, v. Mary J. BLYTHE, Adm'x, Estate of Kermit A. Blythe, Deceased, Appellee.
Attorney:[18] Wright, Lindsey & Jennings, for appellant. [19] Guy H. Jones, Sr., Phil Stratton and Guy H. Jones, Jr., for appellee.
Case Date:January 11, 1971
Court:Supreme Court of Arkansas

Page 205

462 S.W.2d 205 (Ark. 1971)

249 Ark. 793

James H. WOODWARD, Appellant,

v.

Mary J. BLYTHE, Adm'x, Estate of Kermit A. Blythe, Deceased, Appellee.

No. 5--5364.

Supreme Court of Arkansas.

January 11, 1971.

Rehearing Denied Feb. 15, 1971.

Page 206

[249 Ark. 794] Wright, Lindsey & Jennings, Little Rock, for appellant.

Guy H. Jones, Sr. and Phil Stratton and Guy Jones, Jr., Conway, for appellee.

HOLT, Justice.

This case, resulting from a multiple car collision, is before us for the second time. The circumstances surrounding the accident were extensively[249 Ark. 795] detailed in our first

Page 207

opinion, Woodward v. Blythe (Ark. Apr. 28, 1969), 439 S.W.2d 919.

Appellee's decedent, Kermit Blythe, was driving a red Corvair in an easterly direction on Highway 70 in the early morning hours of February 14, 1966. He was followed by appellant in a light blue Dodge. A white Cadillac, also headed east, was stalled on the right shoulder of the road and left there unlighted and partially on the pavement. The decedent, veering suddenly to his left to avoid the stalled automobile, sideswiped an oncoming white Pontiac. The impact caused a forward halt and counterclockwise rotation of the Corvair, positioning its left front portion in the path of appellant's eastbound Dodge. Within a few seconds, the Dodge, after skidding 83 1/2 feet, struck the left front or driver's side of the Corvair, then deflected slightly to the right for a distance of 25 to 30 feet where it struck the rear of the stalled Cadillac and there came to a stop. The Corvair traveled another 50 feet eastward after the second impact before coming to rest. A few minutes thereafter, appellee's decedent, having sustained head injuries, a crushed chest, broken legs and other bodily injuries, was found dead in his Corvair. The left front portion and door of his car were crushed inward. The driver's seat, partially torn loose, was pushed to the right, as were the steering shaft and wheel. The decedent's body was found strapped in his seat and lying to the right.

In an action for wrongful death, a jury awarded $137,000 to appellee against appellant and a codefendant, Leonard Johnson, who was the operator of the stalled Cadillac. Johnson did not appeal from the judgment against him. Appellant, however, appealed and gained a reversal on the basis of a deficiency of proof as to whether his negligence was a proximate cause of decedent's death. Upon retrial, a jury verdict and judgment of $150,000 was entered against appellant. The present appeal follows.

For reversal appellant contends that he was entitled to a verdict and judgment as a matter of law because there was no substantial evidence that he was [249 Ark. 796] negligent. We cannot agree. On first appeal, appellant likewise contended that there was no substantial evidence to support a finding that he was guilty of negligence. We held to the contrary, stating:

(W)e cannot say as a matter of law that the evidence in insubstantial that the appellant was following too closely or failed to keep a proper lookout, or failed to keep his vehicle under control.

This holding has become the law of the case. Since the evidence offered at the first trial as to the issue of negligence was reproduced upon retrial, our previous decision regarding the existence of substantial evidence of negligence is now conclusive upon the parties. St. Louis S.W. Ry. Co. v. Jackson (Ark. March 3, 1969), 438 S.W.2d 41; Moore, Adm'x, et al. v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968).

Appellant next asserts for reversal that the evidence is deficient as to proximate causation. We said on first appeal:

From the evidence in this case, we are forced to the view that only by conjecture and speculation could it be said that appellee's decedent was or was not alive when this second impact occurred and that negligence on the part of appellant was a proximate or contributing cause of the death.

On remand, appellee adduced from the testimony of four doctors that the decedent was 'medically alive' at the time of the second collision. However, none of the doctors could or would give an opinion as to which impact caused what injuries. Appellant therefore argues that is was still mere conjecture and speculation for the jury at the second trial to have found that his negligence was a proximate or contributing cause of the decedent's death because fatal injury was not shown to have resulted

Page 208

from the collision between the Dodge and the Corvair.

[249 Ark. 797] We cannot agree with appellant's reasoning. At the second trial appellee adduced additional evidence. Dr. Robbins, an expert physicist whose qualifications are admitted, testified regarding the physical dynamics of the accident. After studying photographs of the damaged vehicles and determining the angles of the two impacts in the context of a hypothetical reconstruction of the multiple collision, Dr. Robbins stated with reasonable scientific certainty that the initial impact against the oncoming white Pontiac halted the forward motion of decedent's Corvair and displaced its momentum into a counterclockwise rotation which resulted in the positioning of its frontal left portion in the path of appellant's blue Dodge. He further noted, again...

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