Lee v. Crittenden County, 4-9054

Decision Date23 January 1950
Docket NumberNo. 4-9054,4-9054
CourtArkansas Supreme Court

Herman Spears, West Memphis, for appellant.

Hale & Fogleman, Marion, for appellee.

HOLT, Justice.

Appellee, Crittenden County, sued appellant, Construction Company, to recover damages to its radio tower alleged to have been caused by the negligence of appellant in the construction and maintenance of its wooden elevator tower or shaft which it was alleged fell against appellee's radio tower during a windstorm.

Appellant answered with a general denial and further defended on the ground that any damages suffered by appellee were due solely to a severe windstorm, 'that is to say an Act of God.'

A jury trial resulted in a verdict for appellee in the amount of $1,353.16, and from the judgment is this appeal.

Appellant first questions the sufficiency of the evidence.

Appellant, under a contract to remodel the county jail, had erected a wooden elevator tower or shaft about 40 ft. in height, about 7 ft. square at the base, and slightly smaller at the top. The corner posts were 4 X 4's, resting on boards 2 X 12. The tower was braced by 2 X 6's and guyed by two 3/4 in. sea grass ropes, 'A. There were no stakes driven there' (at the base of the tower). It contained an elevator platform which rested near the second floor window of the jail at the time the tower fell. The corner posts showed marks, or evidence, of having been struck by some object. There was also a board 2 X 6 around the bottom of the tower, which sat on the ground.

Witness, Cecil Goodwin, described the radio tower: 'A. The radio is Motorola equipment and the tower is made out of angle iron in triangle form, three ways strapped together with strips of metal. It is 195 feet tall, it has five guy wires from each angle of the triangle form and those guy wires are anchored to a dead-man and each dead-man has about one-half a yard of concrete in the hole and the base of the tower is about seven feet deep filled with concrete; probably one and a half to two yards of concrete in the base.'

On the night of December 31, 1947, shortly following a severe "though not unprecedented' windstorm, it was discovered that the wooden elevator tower above had been blown over and had fallen across the guy wires attached to the radio tower, causing it to 'buckle' and fall. With the exception of the three lower 20 ft. sections of the radio tower which were left standing, the tower had buckled and fallen. 'The anchors were all intact, the ground was not even broken' at the base of the radio tower. There was evidence that this radio tower would withstand a wind velocity of 100 miles per hour and that the windstorm in question was not strong enough to have caused it to fall.

Also in evidence were certain photographs made on Sunday following the mishap on Wednesday night before, which fairly reflected the surroundings, the condition of the radio tower, its guy wires and the elevator shaft as they existed immediately after their fall.

We do not attempt to detail the evidence. It suffices to say that when we consider and weigh all the testimony, in the light most favorable to appellee, as we must do, we are unable to say that there was no substantial evidence from which the jury could have found, and must have found, that appellant was negligent in the construction, operation and maintenance of its wooden elevator shaft, as alleged.

Appellant next argues that there was error committed in permitting the introduction of certain photographs which 'were taken four days after the windstorm occurred.' We cannot agree. 'As a general rule photographs are admissible in evidence when they are shown to have been accurately taken, and to be correct representations of the subject in controversy and are of such a nature as to throw light upon it.' Sellers v. State, 91 Ark. 175, 120 S.W. 840, 842.

There was evidence tending to show that these pictures were accurately taken before material changes had occurred and fairly reflected conditions existing following the fall of the wooden elevator and the radio tower and were of such nature as to throw some light on the matter in controversy.

'The admission, relevancy and materiality of photographs as evidence is left to the discretion of the trial judge and, unless that discretion has been abused, his ruling will not be disturbed,' (Headnote 5) and in the body of the opinion: 'Photographs are admissible in evidence in criminal cases upon the same principles and rules governing their admission in civil cases.' Higdon v. State, 213 Ark. 881, 213 S.W.2d 621, 623.

In the circumstances, we think no abuse of discretion has been shown.

Next, appellant insists that the testimony of Riley Goodwin was improperly admitted for the reason that he 'was not an expert, could not qualify as an expert, and knew nothing about what he was attempting to testify about.' This witness testified (from appellant's abstract): 'That he is associated with Wincharger Corporation in the erection of towers, has been engaged in this work for about two years, has erected approximately 100 such towers, his experience in such work, 'has been very general;' that since his arrival in Marion (presumably the day before trial), he examined cables and anchor points of the tower, found them to be in good condition; that the manner of construction of this tower is better than usual in that it has 'concrete anchors, which are not very common.''

He further testified that the radio tower in question was designed to withstand a wind velocity of 100 miles per hour. 'I have seen them that have taken it;' that he knew the effect of wind on towers of the same design and construction as the one here involved.

Over appellant's objection, the witness was permitted to testify further as follows: 'From your experience or work on towers of similar type and from your knowledge of towers of similar construction and stress will you tell the jury what would cause a tower to fold as that one has in that picture. A. I would say that something like this, it would be caused by some object or something besides a wind, something like an airplane flying into it or something like that or unusual pull on the guy wires from a certain direction.

'Q. Assuming that the tower in question is standing erect, properly guyed and a heavy object falls upon one of the guy wires, what would be the effect on the section of the tower to which that guy wire is attached? A. In the case of a heavy object falling on a guy wire the guy wire will act as a fulcrum the guy wire would act as a lever and it would cause it to buckle, like you break a stick over your knee. * * *

'Q. From your knowledge and information acquired in the construction of these towers and towers of similar type to the one in use here, can you tell this jury, under a high wind velocity which would part first the tower, or the buckles, or the guy wires or anchor holders? A. In any instance the guy wires or anchors will give way before the tower, if they don't give way the tower won't fall either. * * *

'Q. I...

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