Powell Brothers Truck Lines, Inc. v. Barnett
| Decision Date | 01 November 1937 |
| Docket Number | 4-4781 |
| Parties | POWELL BROTHERS TRUCK LINES, INC. v. BARNETT |
| Court | Arkansas Supreme Court |
Appeal from Boone Circuit Court; J. H. Black, Judge; reversed.
Judgment reversed and cause remanded for a new trial.
Cotton & Murray and Westbrooke & Westbrooke, for appellant.
V. D Willis, Ben C. Henley, Ralph R. Rhea and Shouse & Walker, for appellee.
The accident which was the foundation of this suit occurred at Seligman, Missouri, on the morning of September 6, 1936. Barnett, the plaintiff, had gone to sleep upon a "bandstand" or platform erected upon an automobile frame and wheels placed near the highway, on the night of September 5, and early next morning, perhaps, about daylight the truck driven by one of the drivers of the appellant corporation was permitted to skid or run into this platform upon which appellee was asleep and caused the injuries for which he sued. A very brief statement will be made in order that the contention of the appellant may be presented. There will be no effort to state the entire controversy nor all the contentions of the parties as this is unnecessary.
Powell Brothers Truck Lines, Inc. was operating a tractor-trailer truck from Springfield, Missouri, to Harrison, Arkansas. In the town of Seligman there is an "S" curve upon the highway and near one of these curves, just a few feet away the exact distance being much in dispute, was a "bandstand" upon which Otto Barnett went to sleep the night before the accident and upon which he was still sleeping the next morning at the time of the accident. At the place of the accident there was a down grade. The truck was loaded with about 10,000 pounds of freight. One of the tractor wheels is said to have locked and the driver of the truck contends that he was attempting to steer the truck from the main traveled highway upon the roadside when, by reason of the locked wheel, it was impossible to keep the truck under such control as to prevent it striking the "bandstand." The "bandstand" was not turned over, but was knocked a short distance. Immediately after this collision, perhaps within two or three minutes, Barnett appeared with a skinned place on his nose and advised the driver of the truck that he had been thrown from the "bandstand," that he was more scared than hurt. First-aid was administered to Barnett in which his nose was treated, there apparently being no other injury. He was given his breakfast, which he ate with relish. After that, on the same day, he went by train from Seligman to his home at Harrison.
The suit for $ 35,000 was filed and numerous short continuances were had and the case was finally tried, and a verdict and consequent judgment were rendered for the plaintiff in the sum of $ 10,000. Appeal has been prosecuted from that judgment.
One of the matters contested, with considerable conflicting testimony, was the extent of the injuries of Barnett. Several doctors testified, each detailing in his testimony conditions found and observed by him. Some of this testimony was in irreconcilable conflict with other portions covering the same points.
The defendant had asked for the appointment of physicians to make an examination of the plaintiff. The court had appointed for this purpose Dr. McCoy and Dr. Kirby. No objection was made to the appointment of either of these physicians at the time of the appointment or prior to the time that the examination was made by them of the plaintiff. It is conceded by the appellee, plaintiff below, that the appellant had the right to have this examination made. It appears to have taken a portion of two days for the examination to be made. At the time Dr. McCoy was offered as a witness, objection was made to the competency of the witness, and the court sustained the objection, and the witness was not permitted to testify on account of the fact that he had at one time treated the defendant for some of his alleged injuries and was his "personal...
To continue reading
Request your trial
-
Williams v. State
...Triangle Lumber Co. v. Acree, 112 Ark. 534, 166 S.W. 958; Shephard v. Mendenhall, 127 Ark. 44, 191 S.W. 237; Powell Bros. Truck Lines, Inc. v. Barnett, 194 Ark. 769, 109 S.W.2d 673. The State's objection, as well as the trial court's ruling, in this instance, went purely and simply to compe......
-
Wallis v. Mrs. Smith's Pie Co.
...Co., 267 Mo. 398, 184 S.W. 1144 (1916), and Chandler v. Mattox, 544 S.W.2d 85 (Mo.App.1976). See also Powell Bros. Truck Line, Inc. v. Barnett, 194 Ark. 769, 109 S.W.2d 673 (1937). Arkansas, on the other hand, follows the more modern rule of comparative fault which apportions liability betw......
-
Missouri Pacific Transportation Co. v. Moody
... ... It is ... true we said in the case of Powell Bros. Truck Lines, ... Inc. v. Barnett, 194 Ark ... ...
-
Aetna Life Insurance Company v. Gordy, 15748
...a fair trial. "Prejudice is presumed when a party is denied the right to use a competent witness." Powell Bros. Truck Lines, Inc., v. Barnett, 194 Ark. 769, 109 S.W.2d 673, 674; Missouri Pacific Truck Company v. Moody, 199 Ark. 483, 134 S.W.2d 868, 871. We express no opinion upon other inci......