ARK.] THE DERMOTT GROCERY & COM. CO. OF 591. EUDORA V. MEYER. ; THE DERMOTT . 6ROCERY4L '6014 • MI§Si6*. CoirAkv-•• EUDORA V: MEYER: , . .44512 • Opinimi . delivered Februa6 , 8, 1937. AUTOMOBILIES—COLLISION--INJURIES.—Evidence showing that an ice truck and a grocery truck Were racing; that appellee,e third.' , party, pulled his' ear as far to the rikht as pl'assible to prevent their striking him; that wheh the ice truck undertook to pass the' grocery truck, the driver of the latter veered to the' left: to pre-yent the ice . truck from passing at which time they struck each other and the ice truck , struck appellee's car., warranted the. jury in finding that apiiellant, owner of the giocery truck, was responsible for the collision which' resulted in appellee's injuries. 2. AUTOMOBILES-L-EVIDENCD—PHOTORAPHS.—In an action •for damages sustained in a collision between two motor vehicles, there was no error:in refusing to admit in evidence pictures Nos. 2 and 3 where : everything . that appellant wanted to show , by them was shown by picture No. 1; and where . the pictures were made long after the accident' and where the eVidence showed that at the-time of the aecideht the grass . ' on the shdulderS''of the highway was waist high and at the time the pictures were made it had: been cut. • . TRIAL.—Where, in ah action for personal injuries sustained in:a' collision between two automobiles, a witness was asked . to tell the jury "who was at fault," : there Was no error : in exClUding it, Since that Was the question to'be Merl/fined by the jury.' 4. DAMAGES.—In an action, tO..recover for personal injuries sustained in an autoMobile collision, the queStions of liability and: the amount of appellee's damages were for the jury, and if , their verdict is sustained by substantial evidence,. the Supreme Court cannot reverse it. 5. , determinifig the arh DAMAGES-,--ELDIVIENTS.—Tlie jury,-ouht Of. damages that should : be awarded in en action 'for' personal' in-' juries, takes into consideration- the• character of the Injury, the extent of it, and, if..permanent, the; life expectancy. of , the injured party, and both physical and mental pain . and anguish; and what will be a fair:arid just compensation depends upon 'the credibility Of the' witness" an d' the* Weight t8 be' given their' tes-' timony.
592 TEIE DERMOTT GROCERY • & COM. CO. OF [193 EUDORA V. MEYER: 6. DAMAGES—AMOUNT OF .VERDICT.—Verdia for $6,250 he , ld to be supported by preponderance of the . evidence both as to the :question of liability and the amount of damages awarded. • Appeal from Chicot Circuit Court; D. L. Purkins, Judge; affirmed. John Baxter and Shields M. Goodwin, for appellant. W. W. Grabb.s , and,J. R. W ascot, for appellee. • MEHAFFY, J. Appellee, Alvin Meyer, brought suit in the Chicot circuit court against the appellant for damages on account of perSonal injuries sustained by him on September 13, 1933, and alleged that he was injured by the negligence of a driver of a truck owned and operated by appellant. The aPpellee, Meyer, Was driv ' ing a Ford coupe from the standard oil station at 6rand Lake, to his home at Readland, a distance of several miles. He left the. oil station at about 3 o'clock in the afternoon, and Mrs. Hazel Kennedy was with him in his • car. They Were traveling south on the highway and there Were two trucks traveling north oh the highway ;. one owned by L. Lewis, doing bu§iness- as the . Eudora, Ice' Company, and one owned and operated by the. appellant. Jesse . Smith was the driver of the ice truck and Jake Moore was the driver of appellant's truCk. • The evidence tended to shoW that while appellee and Mrs. Kennedy were traveling south on highway 65 they saw the two trucks coming toward them side-by side, the trucks traveling north.. The trucks were 'racing. There were two slight 'cUrves in the road and they saw the truCks . at tha seCond'curve.. . . Mrs. Kennedy testifiod that she remarked: "Those two trucks are running a race," and she knew they were in danger and told the appellee he had better stop. When she told . hini that, he pulled over to the side of the road as far as he could and' stopped -. When the truckS got right up in front of appellee's car, the, Dermott Grocery. ; truck -pulled . a•little back toward the ice truck, and the front wheels collided on both trncks. The trucks had been-practicallf • even for a considerable- distance. The Dermott- Grocery fruck veer4 toward the ; ice truck and about that . time , one pf the trucks hit the Ford car. Both Mrs. Kennedy and the appellee were injured severely.
ARK.] THE DERMOIT.GROGERY -4 COM. CO. OE . 593. },IUDORA V. MEYER. She, also, ;testified that as soon as :they observed the trucks, they moved along at a very slow rate, and parked: their car before the wreck occurred. The trucks , did mot, attempt to slow up.. There was no:obstruction to ,keep them from : seeing the trucks except a, cottonwood tree on the side of the road ;:that did not obstruct the trucks.from view, but for .an instant. •. . ,• 'Julius Hester testified In s snbstance that lie' was trnveling on highway 65 and-Saw the bve trucks' Coming: They 'were traveling north:n:11d: Were-almost side by side: The ice truck was just behind' the Dermott Grocery truck When Witness . 'saw them.' He said after a little bit it ran: up beSide the . Dermett truck and every tinie it tried to pass the Dermott truck.weaved ont into the highway to keep him back, and a little after. that they hit into Mr. Meyer. The trucks hit each other before they hit Mr.: Meyer. Witness stopped : before the accident... He was about three car lenkths behind Mr. Meyer,' and when Meyer stopped, he stopped. Witness said when he Saw the trucks they were down the road a good 'piece arid were Weaving and racing: When witries first , saW the trucks the Dermott Grodery trUck 'was half a length ahead of the' ice 'track; When the wreck occurred they. were. eVen. The truAs Were side by side and ran into each other, and the ice' truck came back and hit appel: lee 's car. There were several other witnesses who testifiedrand their testimony corroborated the testimony of Hester:and Mrs. Kennedy, but we do not copy it, for appellant:states that it is conceded that there. is _evidence in the rec.ord from which the jury might have found that appellant was xesponsible for the • collision which resulted in Meyer's injuries, The jury .was warranted in finding. that the trucks were racing and that when the ice truck undertook to pass appellant's truck the appellant's truck veered to the left to'preverit passingrand at that time they struck each other aiat then the ice trnck struck ap-. pellee's car. Appellee had..stopped his car and parked as fay to-the right side of the road.as he could..
594 THE DERMOTT GROCERY & COM. CO. OF [19.3
EUDORA V. MEYER. There was a verdict and judgment for $6,250 in favoi of appellee; and to reverse said judgment this appeal is prosecuted. The appellant contends for a reversal first because it says that the court erred in not admitting pictures Nos. 2 and 3 offered by witness C; B. Bauman. Picture No. 1 was introduced and appellant offered pictures Nos.. 2 and 3 for the purpose of , showing the width of the highway and of showing the highway up to Landi's .store,- and showing where highway 65 turns.. In the first ,place, everything that the appellant: , says it wanted to introduce the pictures for is shown in picture No. 1, and witnesses testified clearly as to width of the highway, so. that there could be no doubt about the jury's understand-. ing the situation. Again, the pictures were• made long after the accident, and the evidenee shows . that at the time of the accident the grass on the shoulders and in the ditch was waist high,. and . at . the time . the picttres were taken the grass had been cut. Besides, pictures Nos. 2 and 3 had cars, placed by . the apPellant. Appellant, .;tO' sustain his contention, calls attention first to the case of . Learande, y. Arkansas Oak Flooring Co., 15 . 5 Ark. 58; 245 S . . W. 38. . The .Court in that case said: .. "The photographs . were duly authenticated. They were shown fo be correct representations of . the locus in qui) at the time the appellant was injured. They were therefore admissible as evidence to aid the court or jury to understand the evidence, and' Witnesses to 6cplain their testiinony." • -The photographs . in 'the Present case are not correct representations of the' situation at the time' appellee Was injured, and if they 'were, it was not error to refuse to permit their introduction, because there was nothing to explain that the jury could not thoroughly understand from the testimony and from photograph No. 1 which was introduced in evidence: • . Appellant next calls attention . to and relies . on the case of St. Louis-S. F. Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576. In thaf case the CoUrt said: " The photographer testified that the pictures *ere absolutely 'accurate, and that they trulY portrayed the scene- of the injury, but,'
ARK.] THE DERMOTT GROCERY & COM. CO. OF 595
EUDORA V. MEYER. as before stated, he admitted that a person merely looking at the pictures could not tell the distance from the highway crossing to a • point up the track. This did not, we think, destroy the value of the photographs as evidence.'' The court in that case said that it was difficult to see how any prejudice resulted from the introduction of the pictures. Attention iS next called to the case of Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. (2d) 972: In that case the court says that the, evidence showed that the photographs were the • exact reproductions of the situation;• with the exception of Murphy's car, which had been removed.' The court then quotes from the case of Sellers v. State, where the photographs' were held to be inadmissible, and a reversal was had because of that. • . - Whether a . *photograph. is sufficiently verified as a proper 'representation, arid whether it would be helpful to the jury, are preliininary question ' s fo ire determined by the judge preSiding at the trial, wlio is invested with considerable discretion in deterrnining as .to the admiSsibility of the evidence, and whose action in the premises ivill not ordinarily be:reviewed by an appellate court. • 22 C. J. 921, 922. • : . • In'the case of Blair v: State, 69 Ark. 558, 64 . S. W. 948, while the:court held that diagram§ and photographs were admissible -when shown to .be correct, •the court stated: "But the ' exclusion of them in. this case was not prejudicial, 'because the • testimony of witnesses was sufficiently full and explicit • to enable the jury: to • clearly understand what the _diagram and table -were •ifiterided to show:: . There was no error in the . cotirt 's refusal to •permit the • introduCtion of photographs M:i8: 2 and 3 Youn v. State, 144 Ark. 71, 221 S. W. 478 ;. Tillman v. 'State; 112 Ark. 236, 166 S.M. 582; Zimi Chene y v.• State, 135 Ark. 342,, 205 . S. W..701; ' Sellers' v. , Stdte,, 91:Aik 175, 120 S. W..840. . . ApPellant riext contends that the ' court below . should have admitted . the testimonY of Jesse Smithl:. The'appellant's attorney . asked Sthith this 'que§tion: . ``.Jesse, who
596 ThE DERMOTT . GROCERS: & COM. CO. OF [193 EUDORA V. ME VRIL was at fault?" and it is argued that Smith would have answered that he was :willing to say that he was at fault. This question was .not proper, and the court did not err in excluding it. 'While the evidence shows that Smith, as well-as the driver of the other truck, was at.-fault, yet this was the very queStion.to be determined by, the jury, and not by the witneSs. Witnesses testify as to facts, and whether any one is negligent, or in-the exercise of care, is a question for the- jury. The- witness testifies as to facts, and the jury draws the.conclusion. • "Inasmuch as-the jury is to .fix the standard of conduct in, a. given, case; a.: witness will. not be allowed to characterize the conduct of. the -party . as careful; or reasonable, or the reverse.'.' Chamberlayne Trial Evidence, pp. 895, 896. . Appellant finally-contends that-the judgment should be reversed because the verdict -is excessive. Witnesses testified as to the_ injury of. appellee, and the -appellee hiinself . testified that he. was 26 years old when the collision occurred . , was, receiving $3,40 a day, and he remembered .when -he was -in the, hospital• that he had been injured. When he became conscious he was in the hospital at Greenville, Mississippi, and his mother was with him. He suffered great pain with -his neck,- head, arm, side and nose -he did not know where he was. until he was told; but when he became -conscious his right arm was- in a cast, his nose -was -broken, and he had received a:Severe blow on. the head. His left eye was hemorrhaged. and -bloodshot,- his, face . Was blue-and cut and- scratched up; was bruised and his right leg hurt -him, -and he had a pain:in 'his stomach and abdomen; he remained in the hospital 11,-days: After.he- returned:home- he. became dizzy, and before he could get undressed for bed had a fainting and dizzy spell, and-collapsed. He was not able to -work any aT.year -and a- half, and..after -that -period still -had trouble with.his -head; his right wrist was broken and he does not have the strength in it that he formerly. 'had.; since the- accident he has• -not , been able to .do ,the same kind..of 'manual -labor- that he did -before ; he scan .only .work . a few days at-a time... -Before-the. accident be- had
ARK.] THE DERMOTT GROCER Y & COM. CO. OF 597
EUDORA V. MEYER. always been healthy. Appellee has .tried to remember what happened from the time he left work until he became conscious in the hospital, but is unable to remember anything about the accident. He had received $1,990 from the Metropolitan Casualty Insurance Company, who carried insurance for the Eudora Ice Company, and signed a covenant not io sue the ice company. Dr. E. P. McGehee, who had been engaged in the practice of medicine for forty years, examined the ap-pellee, found that he had low blood pressure, a fractured nose and a cavity in the cheek bone, and that the nasal condition gave him trouble in breathing. There was a fracture of the right wrist, and he does not have the use of it as he did before. He was unconscious and there was no other way to explain the loss of memory for the length of time, except it wasdue_ to a concussion of the brain. His disability is probably 50 per cent. It would • not be unusual for his conditicin to result in mental trouble later in life. . Other witnesses testified as to his injury and the extent thereof. The amount of appellee's damages was, under the testimony, a question for the . jury.. . The jury are the triers not only of the question of liability, but of the amount of damages, and if the verdict is suStained by substantial evidence, this court cannot reverse. The damages in cases of this kind is compensation, and what will be a fair and just compensation,, is a question of fact,. the determination of which depends upon the credibility . of the witnesses and -the weight of their testimony. 'The jury, in determining the amount of damages that-should be awarded, takes into conSideration the character of the injury, the extent of it, and if permanent, the life expectancy of the injured party, and . both physical and mental pain and anguish... Coca-Cola Bottling Co. v. McNeeCe, 191 Ark. 609, 87 S. W. (2d)• 38 ; American Refrigerator Transit Co. v. Stroope, 191 Ark. 955,88 S. W., (2d) 840 ; Postal Telegraph-Cable Company v. White, 190 . Ark. 365; 80 S. W. (2d) 633 ; Arkansas P; & L. Co. v. Hughes, 189 Ark. 1015, 76 S. W. (2d)• 53 ; Gaster v. Hicks, 181 •Ark.. 299, 25 S. W. (2d)- 760 ; Rag: land v. Snotzmeier, 186 Ark. 778, 55 S. W. (2d) 923 ;
598 [193 Mississippi -River Fuel Corp. v. &nu, '184 Ark. 554, 43 S. W. (2d) 255. • It is our conclusion that the verdict is supported by a preponderance . of the evidence both as to the question of liability And the amount of damages awarded. The jndgment: is, therefore, affirmed:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.