Jewel Tea Co., Inc. v. McCrary

• Decision Date: 12 December 1938
• Docket Number: 4-5295
• Citation: 122 S.W.2d 534,197 Ark. 294
• Parties: JEWEL TEA COMPANY, INC., v. MCCRARY
• Court: Arkansas Supreme Court

122 S.W.2d 534

197 Ark. 294

JEWEL TEA COMPANY, INC., v. MCCRARY

4-5295

Supreme Court of Arkansas

December 12, 1938

Appeal from St. Francis Circuit Court; D. S. Plummer, Special Judge affirmed.

Judgment affirmed.

Mann Mann McCulloch, for appellant.

Marvin B. Norfleet, for appellee.

OPINION

GRIFFIN SMITH, C. J.

This appeal is from a judgment for $ 1,500 on a jury's verdict finding that H. W. Jonakin was negligent in driving a Jewel Tea Company automobile, as a consequence of which appellee sustained personal injuries.

The gravel highway on which appellee was driving his Chevrolet car south from Forrest City is about thirty feet wide. Appellee testified that he slowed to 25 or 30 miles an hour to pass a cattle truck, a part of which was parked on the highway, occupying three or four feet of the west portion thereof; that he had cleared the truck and was four or five car lengths beyond when the Tea Company car struck his left fender and "stripped me down." The accident occurred between 7 and 7:30 o'clock in the evening. In explanation of the shock he sustained, appellee said: "I was 'out' until between 9:30 and 10:30, and don't remember being brought back to town."

Jonakin's testimony was that he was on the east [his] side of the road; that he saw the truck parked across the road, and that appellee's car "came out from behind the trailer at about 25 or 30 miles an hour. I was going very slowly and kept to my right and applied my brakes. Had my right wheels 18 inches off the gravel in the grass on the east side of the road when the other car came around. . . ."

Each side introduced other testimony. There was substantial evidence upon which the jury could have found for either the plaintiff or the defendants. The questions of negligence and contributory negligence were properly referable to the jury.

Errors complained of are: (1) That the court should not have permitted Pugh Hodges to express an opinion. (2) That the court erred in permitting E. A. Rolfe to testify concerning car tracks at the scene of the accident, and to draw conclusions therefrom. (3) That photographs were improperly admitted in evidence as exhibits to the testimony of James L. Alley. (4) That the verdict is contrary to the evidence.

In response to the question, "What was Mr. McCrary's condition as you saw it?" the witness Hodges replied: "He looked to me like he was in a kind of semiconscious condition; he talked, but he didn't know what he was talking about." Objection was not made until the answer had been given. The court's ruling was: "He can tell [what McCrary's actions were] and let the jury determine that."

It was proper to permit the witness to describe the conditions he observed. Where one testifying is not called upon for an opinion, but simply for a statement of facts, the rule that competency of such witness depends upon actual experience with respect to the subject under investigation, or previous study and scientific research, has no application. A non-expert may explain what he saw, and state what his impressions or reactions were. ^[1]

E. A. Rolfe testified that he went to the accident locale during the early morning following the collision. Asked if he saw any tracks indicating where the cars came together, he replied: "I noticed tracks that looked like the car going south had gone by the truck, and the car coming from the south looked like just before it got to where it hit the car it turned to the west."

Objection was made that the witness viewed the scene at least twelve hours after the accident occurred, and "the testimony is not competent to show how the accident happened."

The court's...