Alldread v. Mills

• Decision Date: 10 February 1947
• Docket Number: 4-8050
• Citation: 199 S.W.2d 571,211 Ark. 99
• Parties: Alldread v. Mills
• Court: Arkansas Supreme Court

199 S.W.2d 571

211 Ark. 99

Alldread v. Mills

No. 4-8050

Supreme Court of Arkansas

February 10, 1947

Appeal from Drew Circuit Court; John M. Golden, Judge.

Affirmed.

Y W. Etheridge and Williamson & Williamson, for appellant.

C T. Sims, for appellee.

OPINION

Ed. F McFaddin, Justice.

This appeal stems from a motor vehicle collision. Appellee was plaintiff in the trial court, and was awarded a verdict and judgment for $ 4,000. From an unavailing motion for new trial, the appellant (defendant below) brings this appeal, urging here for reversal the six assignments herein listed and discussed. For convenience, we refer to the parties as they were styled in the trial court.

First Assignment: "The verdict and judgment are contrary to clearly established and uncontroverted physical facts in the case."

Shortly after dark on Saturday night, October 28, 1944, the plaintiff, George Mills, accompanied by his wife and two other persons, was driving his Ford sedan northerly towards Monticello, and the defendant's servant (Monroe Franklin) was driving defendant's 1 1/2-ton Ford truck southerly from Monticello. The two vehicles collided on State Highway No. 81, and plaintiff received injuries and damages, the nature and extent of which will be mentioned in the discussion of Assignment No. 6. At the place where the collision occurred the road is practically straight, and a heavy black line indicates the center of the road. The plaintiff was attempting to drive on the east side, and the defendant on the west side. The hard-surface highway is 18 feet and 4 inches wide.

Plaintiff's witnesses testified that the plaintiff was on the east side, and that the defendant's truck crossed the center line and caused the collision. The defendant's witnesses testified that the defendant's truck was on the west side, and that the plaintiff's car crossed the center line and caused the collision. The cars did not hit headon; but the left front of each vehicle received the impact, and each vehicle continued some distance before coming to a stop. Plaintiff's car had the left front wheel and fender damaged, and the left front door crushed. From the collision point, the car angled to the west (left) side of the road before stopping in the ditch about 50 yards from the collision. The defendant's truck had the left front wheel torn from the axle, and knocked "back up under" the truck, with the front or running part of the wheel turned out. Also, there was damage to the body of the truck on the left side just back of the cab door. The truck traveled about 50 yards southwest from the collision. The back end skidded to the right, and the truck stopped with the rear end in the ditch on the west side of the highway. As the truck went down the highway, the rubber from the front wheels left skid marks on the pavement, which skid marks remained visible for several weeks.

It is conceded by the defendant that there is sufficient evidence to sustain the verdict of the jury if the physical facts be ignored, but it is most earnestly contended that three physical facts establish the defendant's case and necessitate reversal of the jury's verdict. Learned counsel for defendant invokes the rule that a verdict will be set aside, if it be against incontrovertible physical facts; and, in support of that rule, cites St. L. S.W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S.W. 768; Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S.W. 342; Platt v. Owens, 183 Ark. 261, 35 S.W.2d 358; Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S.W.2d 1062; Mo. Pac. R. Co. v. Hancock, 195 Ark. 414, 113 S.W.2d 489; and Guardian Life Ins. Co. v. Waters, 205 Ark. 87, 167 S.W.2d 886. To these cases might well be added the following authorities: 3 Am. Juris. 451; 4 C. J. 861; 5 C. J. S. 631 and note, p. 640; 46 C. J. 183; and the annotation in 21 A. L. R. 141 on "Evidence contrary to scientific principles or laws of nature." Mr. Justice Hart, in St. L. S.W. Ry. Co. v. Ellenwood, supra, stated the rule in this language:

"Appellate courts take notice of the unquestioned laws of nature, of mathematics, of mechanics and of physics. So where there are undisputed facts shown in the evidence, and by applying to them the well known laws of nature, of mathematics and the like, it is demonstrated beyond controversy that the verdict is based upon what is untrue and what cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict."

With this rule in mind, we proceed to examine the physical facts which defendant says (a) are incontrovertible; and (b) prove beyond controversy that the collision must have occurred on the west side of the center line of the highway. These physical facts are: (1) the skid marks on the pavement; (2) the condition of each vehicle after the collision; and (3) the final point of rest of each vehicle.

The skid marks. As previously stated, definite skid marks were made on the pavement by the front wheels of the defendant's truck; and these marks began about ten inches west of the center line, and continued with the movement of the truck. Defendant argues that the collision happened where the skid marks began; and that, since the skid marks began on the west side of the center line, therefore, the defendant's driver as not on the east or wrong side of the road. But several witnesses testified that there was dirt caused by the collision on the east side of the center line; and that the truck tire skidded in the dirt for some distance before starting to make the rubber skid marks on the pavement. Also, witnesses testified that the rubber tires of the truck did not make the skid marks until the front wheels became locked by being driven west across the center line. As typical of the plaintiff's evidence on this point, we quote a portion of the testimony of Dempsey Polk, city marshall of Monticello:

"Q. From the signs made from this on your investigation, tell the jury whether or not Mr. Mills' car was across the center line when the collision occurred, or whether or not the truck was on Mr. Mills' side when it occurred. A. The track made over here where this track started in the dirt, knocked off this car, was within six inches of the edge here and gradually went on across. . . . Q. Then the truck, according to your testimony, is bound to have hit this car on the east side of the center line of the highway? A. That's right."

It is thus made to appear that the plaintiff's witnesses claimed (a) that the skid marks began only after the wheels left the dirt, which had fallen from each vehicle at the point of collision; and (b) that the beginning of the rubber skid marks did not indicate the point of collision. If this evidence be true -- and that was for the jury -- the skid marks did not establish incontrovertible evidence as to the point of collision. The fixing of that point was still left to the evidence of witnesses. The jury took the plaintiff's version, and we cannot say that the jury's verdict was wrong as a matter of law.

The condition of each vehicle after the collision. We have previously detailed the damage to each vehicle. Defendant submits that the marks of impact and the resulting physical conditions of the vehicles prove that the collision occurred west of the center line. But we cannot agree. The same marks of impact, and the same resulting physical conditions could have occurred, regardless of which side of the center line was the point of the collision.

The final point of rest of each vehicle. Since the car and the truck both stopped in the ditch on the west side of the road, defendant argues that the car, being the lighter vehicle, must have been headed west before the collision, and merely "sideswiped" the truck. This argument is reinforced by the fact that the left front headlight of the truck was not burning before the collision, and the plaintiff thought -- until a moment before the collision -- that it was the right front headlight of the truck that was not burning.

But we cannot say that the course traveled by the vehicles from the collision to the final point of rest furnishes "incontrovertible physical facts" that the collision occurred on the west side of the center line. The Missouri Court of Appeals, in Lang v. Mo. Pac. R. Co., 115 Mo.App. 489, 91 S.W. 1012, uses this language, which expresses our views here:

"So frequently do unlooked-for results attend the meeting of interacting forces that courts, in such cases, should not indulge in arbitrary deductions from physical law and fact, except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other."

Regarding the defendant's first assignment, about incontrovertible physical facts in this case, it is not for us to substitute our conclusions for those of the jury, unless the physical facts demonstrate beyond a doubt that the verdict was erroneous. We cannot so declare in this case. We take the view, so well expressed by the Missouri Court of Appeals in Stokes v. Metropolitan St. R. Co., 173 Mo.App. 676, 160 S.W. 46:

"We are asked to reverse the judgment on the ground that plaintiff's version of her injury is so contrary to physical law and so incredible that it should not be accorded any probative value. We would not be justified in treating as substantial that which has no substance, in committing the solecism of holding in effect that testimony might be true which common experience and common knowledge of physical laws would reject as palpably false; and should we find the evidence of plaintiff 'is so contrary to the daily experience of common life, so at war with the conceded physical facts,' as to be beyond reasonable belief, we would...