Ellsworth Bros. Truck Lines, Inc. v. Canady

• Decision Date: 27 January 1969
• Docket Number: No. 5--4767,5--4767
• Citation: 245 Ark. 1055,437 S.W.2d 243
• Parties: ELLSWORTH BROTHERS TRUCK LINES, INC., et al., Appellants, v. Mildred CANADY et al., Appellees.
• Court: Arkansas Supreme Court

Page 243

437 S.W.2d 243

245 Ark. 1055

ELLSWORTH BROTHERS TRUCK LINES, INC., et al., Appellants, v. Mildred CANADY et al., Appellees.

No. 5--4767.

Supreme Court of Arkansas.

Jan. 27, 1969.

Rehearing Denied March 10, 1969.

Gordon, Gordon & Eddy, Morrilton, and Rose, Meek, House, Barron, Nash & Williamson, Little Rock, for appellants.

Felver A. Rowell, Jr., Morrilton, for appellees.

HOLT, Justice.

Appellees brought suit for the recovery of damages alleged to have been sustained when a tractor-trailer, owned by appellant Ellsworth Brothers Truck Lines, Inc. and driven by an employee, struck the rear of the automobile in which appellees were riding as passengers. Appellees' separate complaints were consolidated for trial. The jury returned a verdict in favor of appellees and this appeal comes from a judgment on that verdict.

Appellants assert several grounds for reversal, one being there was no substantial evidence that any negligence on the part of appellant driver proximately caused the injuries alleged by the appellees. Since we agree with appellants on this point, it is unnecessary to discuss the others.

The accident occurred in the early hours of the morning. It was dark and raining. Appellant's employee was driving a tractor-trailer and following appellees, who were passengers in an automobile driven by Willie Jean Heaggan. After entering a curve, the Heaggan automobile, going 45 or 50 miles per hour, began to slide, went off the highway into a ditch on the righthand side of the road, and came to a complete stop about 5 feet off of the paved portion of the highway up against a ditch embankment. Appellant's driver was traveling 40 to 45 miles per hour some 200 or 300 feet behind the Heaggan car, saw it go out of control, touched his brakes and shifted down to 9th gear. While his attention was centered on the car in which appellees were riding, an oncoming car struck the left rear tandem wheels of the trailer. The impact severed the air line, causing the brakes on appellant's truck to lock. The right wheels of the trailer went off the pavement, leaving 83 feet of skid marks. Appellant's vehicle came to rest with the right rear tractor tire against the left corner of the rear bumper of the Heaggan vehicle. Of the three taillights on the left rear side of the car, only the one on the outside was broken; the left rear door would not open; the right side was up against the embankment; the vehicle was stuck in the ditch and it was necessary to use a wrecker to remove it.

The rule is well settled that the plaintiff has the burden of proving by a preponderance of the evidence, not only negligence on the part of defendant, but also that such negligence was a proximate cause of the injuries complained of. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W.2d 290; Kapp v. Bob Sullivan Chev. Co., 234 Ark. 395, 353 S.W.2d 5.

Appellees testified that they were thrown forward when appellant's vehicle hit the rear of the car in which they were riding. Appellee Mildred Canady, who was sitting in the back seat, testified that she was thrown forward and hit her head against the 'cross piece' that divides the two doors. Appellee Edith Clemons, sitting in the front seat, said she was thrown forward and under the dashboard. Mrs. Heaggan, the driver, testified that the impact threw her forward against the steering wheel. It is undisputed that the Heaggan car had come to a complete stop in the ditch before being struck from the rear, a 'few seconds' later, by appellant's vehicle. Appellees' version of their injuries is so contrary to established physical laws that no probative value can be attributed to it. It is well known, even among laymen, that when a parked automobile is hit from the rear, the passengers are thrown backward and not forward.

Of course, a reviewing court should not disregard testimony simply because it seems improbable, yet, we have said that where sworn testimony is unquestionably contrary to the laws of nature and science, we will declare as a matter...