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Prowell v. Twin Mills Lumber Corp.

FEBRUARY 14, 1967.




Appeal from the Circuit Court of Franklin County; the Hon. ROY O. GULLEY, Judge, presiding. Judgment affirmed.


Defendant appeals from the judgment of the Circuit Court of Franklin County entered upon a jury verdict in the amount of $15,000.

As grounds for reversal, defendant argues that the verdict is not supported by the evidence, the verdict is against the manifest weight of the evidence, the court erred in giving an instruction offered by plaintiff, and erred further in refusing to give an instruction tendered by defendant.

The testimony shows that on the morning of November 5, 1963, plaintiff had left Mt. Vernon at approximately 11:00 a.m., and was driving south on Route 37. Route 37 is a two-lane highway extending in a general northerly and southerly direction. The road was wet and slippery. At about 11:15 a.m., a short distance north of Bonnie, his car ran off the east side of the road, his car turned end-over-end three times, and plaintiff was injured.

Plaintiff testified that about 4 miles north of Bonnie, he came up behind a truck and followed it 3 or 4 miles. The truck was traveling at a speed of 45 to 50 miles per hour, and plaintiff followed at a distance of approximately 50 to 60 feet from the rear of the truck. He described the truck as being a two-ton, or ton and a half flatbed truck, with a faded red cab, and two plates that extended across the rear of the cab, so mounted that they did not obstruct the rear window. The truck was not loaded, but there were some load chains on the bed.

A short distance north of Bonnie, plaintiff "got a clear passing lane," honked his horn and pulled off into the left or northbound lane; when he was 3 to 5 feet to the rear of the truck, the truck, without signal or warning, pulled into the northbound lane, plaintiff applied his brakes to avoid running under the truck, his car started sliding, and he went off the road.

Charles Bell, employed by defendant as a truck driver, was driving a 1958 Chevrolet two-ton flat bottom truck owned by defendant, south on Route 37. He described the truck as having a red cab, and a flat steel bed. There were vertical iron pipes welded to the bed of the truck, several inches to the rear of the cab. A steel plate, which extended across the width of the cab, was mounted on the pipes, approximately 18 inches below the rear window. A board, also extending the entire width of the cab, was bolted to the pipes, at a height even with the top of the cab.

When he was approximately a mile north of Bonnie, he approached, and followed 300 to 400 feet behind, a red truck with solid sides on the bed; he thought they were "coal sides." The cab of this truck was red. As he came over a crest in the road he saw an automobile which he later learned was plaintiff's, lying in the ditch east of the highway. Bell testified further that he drove a short distance beyond the point where plaintiff's car was lying, turned around in a private driveway, and drove back to the scene. While he was in the driveway, the other truck, which had turned around in the Bonnie Camp Ground Road, just south of where Bell had turned, passed him, and he followed the truck to the point where he had seen plaintiff's car. Both he and the other truck driver pulled off the road, onto the shoulder, and parked. He specifically denied ever having driven in front of plaintiff's car, and further denied that at any time that morning, he had driven onto the east half of the pavement.

Harry Mullinix, a resident of Hot Springs, Arkansas, testified by deposition, that on the morning in question he had been visiting his parents in Johnston City, and was driving to Mt. Vernon, where he had formerly resided, to visit some friends. Just north of Bonnie, at a distance of a quarter of a mile, he saw a red truck traveling south. A car came out from behind the truck, ran off the road on the left-hand side, went into the ditch and turned over "approximately twice." The truck came south to a road marked "Bonnie Camp Ground Road," pulled into the road, backed out, drove north to where the car was off the road, pulled off onto the east shoulder and parked. Mullinix stopped behind the truck, decided there was nothing he could do, and drove on. He described the truck as a red, straight, flatbed, one and a half-ton truck. He saw no other trucks at the scene at anytime.

On cross-examination he stated that as the truck approached him, he noticed nothing unusual about its movements. When he saw what had happened, he slowed his car, pulled off the pavement onto the shoulder "momentarily," and then proceeded northward. It was during this brief stop that he saw the truck complete its turn and start north. He was unable to say whether the plaintiff's automobile had pulled even with the truck prior to running off the road. He stated the truck had sides. He did not see the truck come across the center line, and the truck, when he saw it, was in its lane of travel.

A police officer, called to the scene, stated that there were a number of automobiles gathered when he arrived there, but only one pickup truck, and one straight bed truck.

A witness who lived in the immediate vicinity testified that he came to the scene immediately after the occurrence, and saw only one truck there.

Defendant argues that the jury's verdict is unsupported by the evidence, and is against the manifest weight of the evidence, in that plaintiff did not make a positive identification of the truck that allegedly caused his injury, and that inconsistencies in his testimony, and discrepancies between his discovery deposition and his testimony at the trial, show that defendant's truck was not the vehicle involved in the occurrence.

An understandable presentation of defendant's contentions requires a review of certain portions of plaintiff's testimony. Plaintiff's exhibit 7 is a photograph of a truck, which was identified by Lawrence Finazzo, president of defendant, as being a truck owned by defendant. Upon being asked by his attorney whether he could identify the vehicle shown in the photograph, plaintiff answered, "I would definitely say this is the vehicle that run me off the road, exactly one like it." In response to a later question, plaintiff again referring to the exhibit, answered, "This truck, as I said before, is the truck that run me off the road or is exactly like the one that run me off ...

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