Roddy Mfg. Co. v. Dixon

• Decision Date: 19 December 1936
• Docket Number: 9.
• Parties: RODDY MFG. CO. et al. v. DIXON et al.
• Court: Tennessee Court of Appeals

105 S.W.2d 513

21 Tenn.App. 81

RODDY MFG. CO. et al. v. DIXON et al.

No. 9.

Court of Appeals of Tennessee, Eastern Section.

December 19, 1936

Rehearing Denied Feb. 20, 1937.

Certiorari Denied by Supreme Court May 1, 1937.

Appeal in Error from Circuit Court, Knox County; L. H. Carlock Judge.

Action by R. L. Dixon and R. S. Dixon against Roddy Manufacturing Company and others. Judgments for plaintiffs, and defendants appeal in error.

Affirmed on condition.

Gordon Bowers, of Sevierville, and R. R. Kramer and Green, Webb & Bass, all of Knoxville, for plaintiffs in error Blount Ice Co. and Roy Cooper.

Hartman Hartman & Doughty, of Knoxville, and R. S. Seaton, of Sevierville, for defendants in error Lalee and R. L. Dixon.

McAMIS Judge.

These two suits grow out of a collision between an ice truck belonging to Blount Ice Company, in which plaintiff below Lalee Dixon was riding as a guest, and a Coca-Cola truck belonging to Roddy Manufacturing Company. R. S. Dixon also sued for loss of services. Judgments went against the owners and drivers of both trucks jointly, and all have appealed in error to this court. We shall herein refer to the parties by name or as plaintiffs and defendants.

Counsel for plaintiffs have moved the court to strike the bill of exceptions as incomplete and to strike the assignments of error as insufficient to comply with the rules of the court. There was a rather full discussion of the first of these motions between the court and counsel during the argument of these cases, and we think there is no occasion to discuss it at great length in this opinion. From a reading of the record and a consideration of exhibits and photographs, we have a clear conception of the collision, the cause of it, and the position of the trucks upon the highway; and, since it is not shown that the toy trucks used at the trial were scaled in size to the map in connection with which they were used and were used only to demonstrate the position of the trucks on the highway, we do not think it may be fairly said that the bill of exceptions is incomplete because they were not incorporated therein. If they had been included within the bill of exceptions, they would be of no aid in the trial of the case here, since there is nothing in the record from which we may determine their position on the map during the examination of witnesses, and the motion to strike is without merit.

As to the motion to strike the assignments of error, we think it must likewise be overruled. The assignments of both defendants are supported by comprehensive briefs citing pages of the record in support of the questions raised which cure any infirmities in the assignments proper. Pigg v. Houston & Liggett, 8 Tenn.App. 613; Demarcus v. Campbell, 17 Tenn.App. 56, 65 S.W.2d 876.

The motion to strike from the record two toy trucks or automobiles identified by the trial judge as used on the map during the trial before the jury is sustained for the reason these objects were not filed as exhibits to the testimony of any of the witnesses and hence did not become a part of the record.

Both defendants and the drivers of their respective trucks who were named defendants in these cases and who are also plaintiffs in error here have assigned as error that there is no evidence to support the verdicts and that the court erred in not directing a verdict in favor of defendants at the close of all the proof. These assignments may be jointly considered and disposed of, the two cases having been tried jointly by consent.

Plaintiff Lalee Dixon, a young man 19 years of age, at the time of the accident resided with his father on a rented farm in Loudon county on which farm he worked as a farm laborer. He testified that he had a grammar school education. At the time of the accident he was returning from a visit in Sevier county.

He or his cousin, Elmer Hilton, flagged the truck of defendant Blount Ice Company and he was given permission to ride to Maryville. The truck, driven by defendant Roy Cooper, was partially loaded with ice cut into large cubes and lying in an open bed to the rear of the driver's cab. Dixon seated himself on the floor of the truck bed beside the ice cubes with his back against the cab. In this position he was facing away from the direction in which the truck was going and could not see ahead without getting up and looking over or around the corner of the top of the cab.

Plaintiff testified that after going about a half mile he felt the driver Roy Cooper apply the brakes and that he then stood up and looked around the left corner of the cab. He says he then saw the truck of Roddy Manufacturing Company approaching about 30 feet away traveling about 30 or 35 miles per hour, and that it was then in the middle of the road, which position it maintained until the trucks collided. With respect to the ice truck in which he was riding, plaintiff testified it was on the right side of the highway in the direction in which it was going, running 15 or 20 miles per hour; the substance of his testimony being that it had gotten as far to the right as possible without going over an embankment on that side of the road.

When the collision occurred Dixon was thrown out of the truck and down a steep embankment on the right of the highway in the direction in which he was traveling. As a result of the injuries thus sustained, he remembers nothing further that occurred in connection with the collision.

Plaintiff's testimony with respect to the location of the two trucks, and that the Roddy truck was upon its left side of the highway as it approached the point of accident and continued so until the collision occurred, is supported by the testimony of Roy Cooper and one Pennington, who was seated beside him in the cab, as well as by physical markings on the highway following the accident. It is shown that the traveled portion of the highway at this point is approximately 18 feet wide, and it would seem that the foregoing testimony would constitute material evidence to support the verdict of the jury, as to the Roddy Manufacturing Company and the driver of its truck, S. M. Delap.

However, it is earnestly insisted by counsel for said defendants that the physical facts incontrovertibly show that the collision occurred on the other side of the highway and while the Roddy truck was upon its proper side of the road. In support of this insistence they point to evidence that after the collision the rock bluff on that side of the highway showed physical evidence of having been struck by the Roddy truck and to a dent in the right front fender which it is said resulted from the fender coming into contact with the bluff. Reliance is also had upon testimony showing that following the accident tracks of the Roddy truck were seen for a distance of 50 feet or more within 2 or 3 feet of the bluff. Reference is also made to the fact that the brakes were set on the Roddy truck after the accident.

Much of the able brief filed in behalf of Roddy Manufacturing Company and Delap is devoted to an attempt to show from these physical facts that the testimony of plaintiff and his witnesses with respect to the location of the trucks is so palpably untrue that there is no evidence to support a finding that the Roddy truck was traveling upon the left side of the highway. We do not think this position may be sustained for two reasons. The first is that other physical facts support the testimony of these witnesses, viz., the marks on the highway and shoulder on the other side of the highway which tend just as strongly to show that the ice truck was where these witnesses say it was. Obviously, the diverse conclusions sought to be drawn from the physical facts cannot both find support from the proof in the record considered as a whole. It thus became the province of the jury to determine the credibility of these witnesses and arrive at such conclusion as it thought the more consistent with reason. Kemp v. Caruthers, 11 Tenn.App. 201.

In that case the testimony of plaintiff was contradicted by certain physical facts, but there were other facts which corroborated him and the court held that the probative value of his testimony was for the jury.

In the second place, we do not think the physical facts relied upon are so palpably opposed to the testimony of plaintiff and his witnesses as to destroy its probative force. The dent in the fender could have been caused by the Roddy truck being deflected when the impact occurred. Such a possibility is supported by the fact that the dent in the rock bluff was only 8 feet back of the front end of the Roddy truck when it came to rest, and it is shown by the undisputed proof that the Roddy truck was not parallel with the road after the collision, its right rear wheel being about 3 feet from the bluff while the right front fender was over against the bluff. This circumstance indicates that the course of the truck had been changed before it came to rest.

Reliance is also had upon the position of the trucks and parts thereof found near the scene of the collision as well as the fact that plaintiff was projected over the embankment on the right. It is argued that, considering the weight of the two trucks, respectively, their position on the highway, etc., these objects, according to the laws of physics, would not have come to rest in the positions shown if the accident occurred as plaintiff and his witnesses say it did.

We think these were proper matters for the jury to consider, but we do not think they may be given the effect of destroying testimony to which the jury gave credence.

We therefore conclude that there is material evidence to support the verdict of the jury which implies a finding that the Roddy truck was upon the wrong side of the highway,...