Jenkins v. Associated Transport, Inc., 15322

• Decision Date: 17 April 1964
• Docket Number: No. 15322,15323.,15322
• Citation: 330 F.2d 706
• Parties: Mrs. Fletcher Harvey JENKINS, Administratrix, Plaintiff-Appellee, v. ASSOCIATED TRANSPORT, INC., Defendant-Appellant. Frank L. WHALEY, Plaintiff-Appellee, v. ASSOCIATED TRANSPORT, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

330 F.2d 706 (1964)

Mrs. Fletcher Harvey JENKINS, Administratrix, Plaintiff-Appellee, v. ASSOCIATED TRANSPORT, INC., Defendant-Appellant.

Frank L. WHALEY, Plaintiff-Appellee, v. ASSOCIATED TRANSPORT, INC., Defendant-Appellant.

Nos. 15322, 15323.

United States Court of Appeals Sixth Circuit.

April 17, 1964.

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Andrew Johnson, Stuart F. Dye and Calvin N. Taylor, Knoxville, Tenn., W. K. Fillauer, Cleveland, Tenn., on the brief, for Mrs. Fletcher Harvey Jenkins, Administratrix, Cheek, Taylor & Groover, Knoxville, Tenn., of counsel.

S. F. Dye and Andrew Johnson, Knoxville, Tenn., for Frank L. Whaley, Kramer, Dye, McNabb & Greenwood, Knoxville, Tenn., of counsel.

Andrew J. Evans, Jr., and Thomas W. Thomson, Knoxville, Tenn., Frank B. Creekmore, Knoxville, Tenn., on the brief, Creekmore & Thomson, Knoxville, Tenn., of counsel.

Before O'SULLIVAN, Circuit Judge, MAGRUDER, Senior Circuit Judge, and LEVIN, District Judge.

O'SULLIVAN, Circuit Judge.

Defendant-Appellant, Associated Transport, Inc., seeks reversal of two judgments entered upon a jury verdict rendered in a consolidated trial of a wrongful death action and a personal injury action. In the death case, plaintiff-appellee, Frances Jenkins, Administratrix of the estate of her deceased husband, Fletcher Harvey Jenkins, was awarded $70,000.00; in the personal injury case, plaintiff-appellee, Frank L. Whaley, was awarded $100,000.00. The death and personal injuries were the result of a highway collision between a small pick-up truck driven by the deceased Jenkins and a large tractor-trailer owned by defendant and driven by its employee. Plaintiff Whaley was a passenger in Jenkins vehicle.

Plaintiffs' proofs contained testimony that the Jenkins vehicle was proceeding westerly on a highway that runs easterly from the city of Knoxville; that while so proceeding, it was bumped from the rear by a passenger automobile, causing it to wobble for a short distance, but that its driver quickly regained control of it; that thereupon defendant vehicle, approaching from the opposite direction and travelling at an illegally high speed, crossed the center line of the road and struck the Jenkins vehicle head on, driving it back along the highway for a distance of about 175 feet. Plaintiff Jenkins' decedent, Fletcher Jenkins, was instantly killed and plaintiff Whaley was severely, and permanently, injured.

We will discuss defendant-appellant's claims of reversible error as follows:

1) Sufficiency of plaintiffs' evidence.

Appellant states its question in this regard as a claim that the District Judge erred in holding that there was substantial evidence to support the jury's verdict. No motion for direction of a verdict, motion for judgment N.O.V. or motion for new trial¹ on this ground was made. We will consider the point. We apply the same test, however, as if we were considering whether a verdict should have been directed. Tenn. Cent. Ry. Co. v. Schutt, 2 Tenn.App. 514, 515; Southern Ry. Co. v. Lewis & Adcock Co., 139 Tenn. 37, 44, 201 S.W. 131, L.R.A. 1918C, 976; F. W. Woolworth Co. v. Connors, 142 Tenn. 678, 688, 222 S.W. 1053. We test appellant's claim by viewing plaintiffs' evidence in its most favorable light. Hinton v. Dixie Ohio Exp. Co., 188 F.2d 121, 124 (CA 6, 1951); Illinois Cent. R. Co. v. Abernathey, 106 Tenn. 722, 64 S.W. 3; Illinois Cent. R. Co. v. Porter, 117 Tenn. 13, 94 S.W. 666. There was direct, eyewitness testimony by Whaley, plaintiff passenger, that defendant's vehicle was going from 50-60 miles per hour and crossed the center line of the road into the path of the Jenkins vehicle, and there struck it. As discussed below, this testimony found some support in testimony as to skid marks, by a State Trooper who came to the scene very shortly after the collision. A picture identified by such witness corroborated his own observation of a skid mark which he identified as having been made by defendant's truck in crossing the center line into the path of the Jenkins vehicle. Defendant produced two eyewitnesses who contradicted plaintiffs' evidence. There was also photographic evidence as to post-collision marks on the highway, from which an inference might be drawn supportive of defendant's claim that its driver was not negligent. All of this, however, made questions of fact to be resolved by the jury. Schindler v. Southern Coach Lines, Inc., 188 Tenn. 169, 217 S.W.2d 775; Osborn v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510; Dickerson v. Shepard-Warner Elevator Co., 287 F.2d 255, 259 (CA 6, 1961); Baird v. Cincinnati, New Orleans & Texas Pacific Railway Co., 315 F.2d 717, 720 (CA 6, 1963). If plaintiffs' evidence was accepted as true by the jury, it made out a case of liability.

Defendant's principal argument on the point of the sufficiency of plaintiffs' evidence is that physical facts uncontrovertibly overcame plaintiffs' evidence. The proofs did show that the defendant's truck, at a point some distance beyond the point of impact, went off the highway from its own lane of traffic and turned over. The Jenkins pickup truck came to rest in the south, or defendant's, lane of the highway and a small trailer that had been attached to it ended up off the south side of the pavement. A photograph of the pavement disclosed a gouge in it which a Trooper described as "a jagged place * * * a dug out place in the pavement caused by the impact of the vehicle." This gouge was within the south, or defendant's, half of the pavement. This physical evidence was consistent with, and supportive of, defendant's claim, but it did not completely destroy plaintiffs' evidence so as to permit but one inference. Today's high powered vehicles do fantastic maneuvers when their speed is interrupted by collisions. The mangled vehicles and scars on the highway ofttimes leave bizarre patterns which defy intelligent reconstruction of the events that actually occurred. There was evidence that the left front of defendant's truck went over the line about two feet to strike plaintiff Jenkins' vehicle. There was also evidence that it then drove the Jenkins vehicle back in the direction from which it had been coming for about 150 to 175 feet before the big truck left the highway to its right. In our view, it would not have been impermissible for the jury to infer that after the initial blow, the defendant's truck swung back to its own side of the road, carrying the Jenkins vehicle with it. The jury could likewise infer that the "dug out" place in the pavement was made by defendant's truck while it was moving after the impact. Such an inference would not necessarily be in contradiction of the Trooper's statement that "it was caused by the impact of the vehicles." In all events, the jury was not bound to accept the Trooper's conclusion that the jagged place was created at the instant of collision.

It has been properly held that physical facts, photographs, engineer's surveys, and like evidence can sometimes be so uncontrovertible as to completely destroy oral assertions supported only by fallible memory and, fortunately, sometimes to refute deliberate falsehood. Chambers v. Skelly Oil Co., 87 F.2d 853 (CA 10, 1937); Lovas v. General Motors Corp., 212 F.2d 805, 808, (CA 6, 1954); Camurati v. Sutton, 48 Tenn.App. 54, 68, 342 S.W.2d 732; Harris v. Miller, 24 Tenn. App. 332, 144 S.W.2d 7. The physical facts relied on by defendant in this case, however, do not so unerringly destroy plaintiffs' evidence "as to leave defendant's claim as the only permissible inference." Baird v. Cincinnati, New Orleans & Texas Pacific Railway Co., 315 F. 2d 717, 721 (CA 6, 1963).

2) Was plaintiffs' Exhibit 5 improperly received?

A Trooper identified a photograph of the involved highway, Exhibit 5, which admittedly was taken some days after the accident. The witness, however, testified that it correctly portrayed the same condition as existed when he arrived on the scene immediately after the collision. He identified skid marks which supported plaintiffs' claim that defendant's vehicle had crossed the center line into the path of the Jenkins vehicle. The following is part of his testimony as to Exhibit 5:

"Q. Does that photograph show the area of the highway where the accident occurred?

"A. Yes, sir.

"Q. You may state whether or not that gives a reasonably accurate portrayal of the scene of the accident after it occurred.

"A. Yes, sir, it does."

Referring specifically to the tire marks, he said:

"Q. Will you describe those to His Honor and to the jury?

"A. That was, that is tire tracks, skid marks, put there by the tractor-trailer.

* * * * *

"Q. Now, then, were those tire marks fresh or were they old when you got there?

"A. They were fresh."

An objection to the exhibit, made when it was merely identified as being a picture of the scene, was sustained. It was admitted, however, without further objection, after the above quoted questions and answers established it to be an accurate portrayal of the conditions of the highway immediately following the occurrence. No objection was made to the officer's conclusional observation that the skid marks had been made by defendant's vehicle. A photograph adequately identified as correctly portraying conditions as they existed at the time of the event under consideration is admissible even though taken at some distance in time from the occurrence of the event. Inaccuracies or unreliability can be exposed by cross-examination. Hughes v. State, 126 Tenn. 40, 67, 68, 148 S.W. 543. Whether such exhibits are sufficiently identified as to be reliable evidence is usually a matter within the discretion of the trial judge....