Williams v. Martin, 5-939

• Decision Date: 21 May 1956
• Docket Number: No. 5-939,5-939
• Citation: 226 Ark. 431,290 S.W.2d 442
• Parties: E. E. WILLIAMS, Appellant, v. F. M. MARTIN, Appellee.
• Court: Arkansas Supreme Court

Page 442

290 S.W.2d 442

226 Ark. 431

E. E. WILLIAMS, Appellant, v. F. M. MARTIN, Appellee.

No. 5-939.

Supreme Court of Arkansas.

May 21, 1956.

Odell Pollard, Searcy, Barber, Henry & Thurman, Little Rock, for appellant.

Yingling & Yingling, Searcy, for appellee.

MILLWEE, Justice.

Appellee, F. M. Martin, brought this action for damages growing out of a collision on August 16, 1954, in which his pick-up truck was struck by appellant's trailer truck at a point on U.S. Highway 67 near Judsonia, Arkansas where said highway intersects a graveled road known as the old Plainview Road. Trial resulted in a verdict and judgment for appellee in the sum of $1,500.

According to the evidence on behalf of appellee, he approached the intersection in question on the graveled road which intersects the paved highway at right angles on the north and stopped at a stop sign which is located some distance from the pavement. After looking in both directions and observing a car that passed going toward Searcy, he drove to the opposite or right-hand side of the paved highway, going in a northeast direction. As he drove on the pavement, appellee observed in his outside rear view mirror the loaded cattle truck driven by appellant's employee, Carl Smith, at a rapid rate of speed about 200 yards behind the pick-up truck. After appellee had traveled about 35 or 40 yards on his right-hand side of the highway, appellant's truck the left rear of appellee's vehicle, knocking it off the right-hand side of the road. The impact threw appellee's head against the rear glass window of the truck and 'addled' him. As he slumped over the steering wheel with his foot on the accelerator, his truck traveled about 300 feet down the graveled shoulder and back on the highway where it was again struck by appellant's truck.

Appellee sustained injuries which hospitalized him for 21 days and required 26 stitches in his head and nose. It was stipulated that damage to his truck amounted to $500. A sign reading 'Reduce Speed Ahead' was located on the appellant's driver's right-hand side of the highway about 175 yards from the intersection and signs indicating a speed limit of 35 miles per hour were located on both sides of the highway about 55 yards further east toward the intersection.

While the testimony to the effect that appellee stopped at the stop sign and entered the intersection first is undisputed, the evidence on behalf of appellant was that appellee drove his truck on the highway when appellant's driver was only 30 or 40 feet from the intersection and while two cars doing in the opposite direction were approaching the intersection and had stopped suddenly to permit appellee to drive on the paved highway. Under this sharp dispute in the evidence, the questions of the negligence of the appellant's driver and the contributory negligence of appellee were matters properly to be determined by the jury. It follows that appellant's motion for an instructed verdict on the ground that appellee was guilty of contributory negligence as a matter of law was properly denied by the trial court.

R. L. Knox, a deputy sheriff, was called as witness by appellee. He testified that he was in the sheriff's office at Searcy, Arkansas when he had another deputy, in response to a telephone call, drove to the scene of the accident and made an investigation. In response to a question as to whether appellant's driver, Carl Smith, made any statement as to any effort on his part to avoid the accident, Knox was permitted to answer as follows, over the objection of the appellant: 'He said it looked like there were so many cars and trucks in there that he had to do something; that he had to hit somebody. He said he was afraid if he hit his brakes too hard it would jack-knife the truck and kill the cattle in the truck.'

We agree with appellant's contention that this statement of the driver was not a part of the res gestae and should not have been admitted. It should be noted that this testimony was not elicited to contradict or impeach appellant's driver, who had not then testified, but was admitted as substantive evidence of his negligence. While the exact time that had elapsed since the accident was not shown, we take judicial notice of the fact that Searcy is several miles from the scene of the collision and that several minutes had elapsed since the accident when Smith made the statement. In Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454, 250 S.W. 535, 537, relied on by appellant, a much shorter period of time had elapsed between the collision and the appearance of the officer than in the case at bar. After quoting at length from the case of Carr v. State, 43 Ark. 99, this court there held that statements of the defendant's driver about his brakes not holding were not a part of the res gestae, saying: 'The statements do not come within the definition thus given, for, if the statements of the driver...