Peay v. Panich

• Court: Arkansas Supreme Court
• Writing for the Court: JOHNSON, C. J.
• Citation: Peay v. Panich, 87 S.W.2d 23, 191 Ark. 538 (Ark. 1935)
• Decision Date: 28 October 1935
• Docket Number: 4-4005
• Parties: PEAY v. PANICH

87 S.W.2d 23

191 Ark. 538

PEAY v. PANICH

4-4005

Supreme Court of Arkansas

October 28, 1935

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Action by Lilla C. Peay, in her own right, and as administratrix of Gordon N. Peay, against D. D. Panich, administrator of W. B Miller. Plaintiff has appealed from a judgment for defendant.

Judgment affirmed.

R E. Wiley, for appellants.

Buzbee, Harrison, Buzbee & Wright, for appellee.

OPINION

JOHNSON, C. J.

On April 9, 1933, W. B. Miller, Gordon N. Peay and their respective wives were returning from a week-end visit to Natchez, Mississippi. They were traveling in W. B. Miller's automobile, which was being driven at the time of the incident hereinafter referred to by the owner. Near Vicksburg, Mississippi, the car in which this party was traveling was wrecked while traversing highway 61. Mr. Miller was killed, and his wife was seriously injured, Gordon N. Peay was fatally injured, dying about one month later, and Mrs. Peay suffered very serious and permanent injuries. Two suits were instituted by Mrs. Peay, one in her own right and the other as administratrix of the estate of Gordon N. Peay, deceased, against the administrator of the estate of W. B. Miller, deceased, to compensate the loss and injuries sustained. The complaints alleged, in effect, in addition to the facts heretofore stated, that Miller the owner and driver of the car, was negligent in operating the same at a dangerous rate of speed, namely, more than 60 miles per hour without regard to the safety of the occupants of the car or other traffic upon the highway, and in violation of the traffic statutes of the State of Mississippi which were specially pleaded. All material allegations of the complaints were specifically denied by answers and subsequently the cases were consolidated for trial purposes.

Upon trial to a jury the testimony adduced by appellant tended to establish the following facts: A Mr. Bobb, a witness for appellant testified that on the day of the wreck he was at a filling station situated on the east side of highway 61 going north toward Vicksburg in the State of Mississippi; that at this point a country road intersects the main highway at right angles, and the filling station is located in this intersection; that there is a bridge spanning a small stream in front of the filling station over which the public passes in traveling the highway; that this bridge is 16 or 18 feet in width and approximately 30 feet in length; that the bridge has wings which narrow the highway for the approach of the traveling public; that the highway is straight for approximately one quarter of a mile south of this bridge and in traveling from the south any one can see a two-story frame store building, the filling station building and the bridge for a distance of at least one- quarter mile; that near the bridge is located a sign which says, "Local Road," that south of the bridge open fields lay adjacent to the highway; that immediately prior to the wreck of the Miller automobile, a colored person drove his automobile out of the filling station and began entering the highway; he first saw the Miller car when it was about at the bend of the highway, twelve or fifteen hundred feet south of the store; the colored man's car was driven out into the public road with its front wheels near the center thereof which the Miller automobile was traveling; that he headed south when something went wrong with his engine, and when he saw the other car coming he cut his front wheel back north and the Miller car hit this negro's car about the back end of the front left fender just a glancing blow, knocking his bumper off and bending his fender in and knocking a hole in his left front casing and almost straightening the negro's car north nearly in the center of the road; the Miller car was trying to come back onto the highway and didn't have room and then ran into the banister, the concrete wing of the bridge and then into the creek; that the Miller car was traveling at a rate of speed of not less than 60 miles per hour, and witness could not ascertain that he slowed up to any extent until the car hit the concrete abutment of the bridge. Mr. Bobb's testimony heretofore quoted was corroborated in detail by that of W. W. Pope, who was interrogated by counsel for appellee on cross-examination as follows:

"Q. (Hands witness a paper.) That gives in a brief form your account of the accident two or three days after the accident?

"A. Yes, sir, that is my signature. I recognize it as my version of the accident."

On redirect examination the following occurred:

"Q. Mr. Harrison has shown you a statement you signed that was made before an insurance adjuster who called on you shortly after the accident?

"Mr. Harrison: Defendant objects to that question as being prejudicial and asks the court to declare a mistrial.

"Mr. Wiley: But your Honor, I have the right to ask this witness if he didn't make this statement to an insurance agent about his interest and all the circumstances.

"The Court: Gentlemen, I think it is highly improper to...