1080 MAGNOLIA PETROLEUM CO. V. SAUNDERS. [193 • MAGNOLIA PETROLEUM • COMPANY V. SAiJNDERS. 1 4-4630 Opinion delivered April 26, 1937. 1. TRIAL—WITNESSES--TESTIMONY AT FORMER TRIAL.—Witnesses are not bound in a second trial by testimony given in a former pro-• ceeding; and prior statements or admissions may, in a subsequent proceeding, be used only for the purpose of testing credibility. 2. APPEAL AND ERROR.—Where testimony of witnesses is out of harmony and the explanations they make are contradictory, the 'controversy is referable to a jury, and the determination of the question will not, if submitted under correct instructions, be disturbed on appeal; but where that testimony is at variance with physical facts and such repugnance is material and self-evident, improbable conclusions drawn in f a v or of a party litigant through the sanction of a jury's verdict will not, on appeal, be looked upon as inviolate, if in conflict with recognized elements of time, mathematics, and the accepted laws of physics.. 3. APPEAL AND ERROR—INSTRUCTED VFAIDICT.—In employee's action against appellant to recover for injuries sustained because of
ARtc.] MAGNOLIA PETROLEUM CO. v. SAUNDERS. 1081 appellant's alleged failure to furnish a motorcycle free from defects and mechanical imperfections to be used in appellant's business, held that, under the evidence, the court should have directed a verdict for appellant. Appeal from Clark • Circuit Court ;. Dexter Busk Judge; reversed. Cockrill, Armistead ofg Rector; for appellant J. H. Lookadoo and Tom W . Campbell, for appellee. GRIFFIN SMITIT, C. J. Judgment for $31,000 was rendered by a Clark county jury in consequence of an accident which occurred in Little Rock, January 20, 1935. It was appellee's theory,' concurred in by the twelve men who found in his favor, that a duty rested upon appellant to furnish appellee a motorcycle free from defects and . mechanical imperfections, to the end that be might escape, through acceleration of speed, from a tripartible traffic jam which 'threatened him in front and to the rear: Appellee, 21 years •of age, began working for appel lant in 1932, and in November, 1934, was 'transferred to the station at Sixth and Broadway at a salary of $75 per month. A new three-wheel motorcycle had been purchased by appellant about November 1, 1934. It was assigned to appellee, whose duty it Was to use the 'machine on company business. Appellee testified that he went to work early on the morning of January 19, '1935, and remained on duty until two o'clock in the afternoon ; tbat for two or three days the clutch on the motorcycle had been slipping when the gear was shifted from second into high, but on the morning, of the 19th the clutch had slipped while in low. In an effort to have this corrected, he reported to his "superior officer," and was Assured that the complaint .would have attention. The report was made on Saturday afternoon while appellee . was ,off. duty. Sunday afternoon appellee went to work about three o'clock. Shortly before five o'clocl he made 4 irip, and the motorcycle functioned prope'rly. He as-. sumed, therefore, that the clutch had been tightened: Upen returning to the station he was directed to go to Second and Broadway, and again the MOto'reYcle Was used. He parked the machine at a point on Second Street which would be northwest with respect to the
1082 MAGNOLIA PETROLEUM CO. v. SAUNDERS. [193 center of the intersection of Broadway and Second. After transacting his business, appellee says that he started off very slowly. "The light at Third and Broad-way was in my favor. I went through it. As I approached the intersection of Fourth and Broadway, I saw a man by the name of Davis coming west on 4th Street. There is a stop sign at the intersection of 4th and Broad-way, on the Rest side. It looked- like to me he wasn't going to observe the stop sign, • o I slowed down, put my machine in second. Later I saw I was going to have to slow: down a little more. I . put my machine in low, because Davis was coming right across the stop sign, not observing it. He didn't stop. I did this to avoid a collision with him. I saw that if I went right on I would meet him out there. I stopped the motorcycle, waiting for him to pass. As I stopped I looked around and saw Leroy Allen, who was driving a Model 'T' Ford truck, coming from the rear. I would say he was about twenty or thirty yards back of me. I saw he was going to hit me if I didn't get out of the way, so I gave the machine the `gun'—the gas, as we call it—to 'spin' to the right tO get out of the way. The motorcycle was in low gear and it moved some few feet. The clutch slipped and they caught me there. Allen hit me from the rear and knocked me directly into the path of Davis. The motorcycle was four feet wide, a three-wheeled, Harley-David-son make I would say that I wouldn't have had to pull over five or six feet to have gotten out of Allen's way." Further along in his testimony, appellee said : "The gear had already been shifted to low. I moved the car a few feet before I finally came to a complete stop. It was in low gear at the time I stopped. The motor was running The only thing to be done to start the machine in motion at that time was to release the clutch, or (engage) it, as they call it, because the motor was running and I had my hand on the gas feed and the machine was in low gear. I had it in neutral; I pressed the clutch; the motor functioned as it should have, but the clutch did not. The clutch did not take hold at all. I was unable to move out of the way of Allen and just remained in that
ARK.] MAGNOLIA PETROLEUM CO. V: SAUNDERS. 1083 place' until he oame on and hit me. It was slipping from the time I released the clutch until Allen hit me. I was unable to move out of the path of Allen because the clutch was slipping." That part of the complaint relating to the degree of injury alleges that "The frontal bone of appellee's forehead was injured; eleven teeth were damaged, left hip was thrown out of place, tearing 'ligaments and muscles to such an extent that at the last trial this hip joint would slip out of place frequently ; liganientS 'and muscles of left knee were ;torn loose; spine was injured ; sciatic nerve in spine was injured; bony structure of spine between fourth and fifth vertebrae injured; entire nervous system upset ; has suffered' excruciating pain and mental anguish." The first suit was filed'July 6, 1935: There was a.ver- diet for $30,000, and i e h defendant appealed. See Magnolia Petroleum, Co.17. Saunders; 192 Ark. 783, 94 S. W. (2d) 703. The judgment was reversed.and remanded on a finding here that the Clark circuit cOurt, was not in legal session when the . case was tried. The complaint did not allege any injurY to plaintiff's teeth or hip, although the suit was filed more than five monthS' after the accident occurred, and appellee did not teaify until Novem-ber 12, 1935.. • ' It is settled : pOliey • o • f law . 'that Witness'es are not bound in a second trial 'by' testiniony given in a fOrmer proceeding, and that prior Stateinents or admissions may, in a subsequent action, be used only for the purpose of testing credibility. • Appellee, in 1936, said: "The motor was in low gear and I gave it the' gds. It moved-some, few feet; the clutch slipped and they caught , me there." , . • In the trial in 1935 he said: "As I approached the intersection of Fourth and Broadway streets I saw by the rate of speed Davis was traveling across the intersection, and the way I was riding, that we would. just about collide at the center of ' the street. ' So : I slowed down and put the machine in second: Later I saw I was going to have to slow down a little more, 'and finally I stopped and
1084 MAGNOLIA PETROLEUM CO. V. SAUNDERS. [193 put the maehine in low. As I looked back I saw Leroy Allen coming in a Ford truck, approaching from the rear. I saw he coUldn't stop.. I put the machine in low to spin to the right to get out of his way and at that time the clutch slipped and it just caught me there. I would say that Allen was going about 25 miles an hour. Before entering . the intersection, I had been traveling about 15 miles per hour. Davis was traveling 20 or 25 miles an hour. Allen did not try to swerve his car to the left to avoid hitting me, which he easily could have done, nor did he attempt to stop his car, or slow down. I would say Allen was 15 or 20 or maybe 25 feet behind me. I could justimagine this—it was all done, you see, in a split second. I mean by 'split second' that it all happened there so quickly—it was done so quickly that you couldn't time it like you could if you would get out and measure the time. I just used 'split second' as an expression; it was very little time. I said Allen was coming 15 or 20 or possibly 25 feet behind me—it was all done just at a glance." In a signed statement made soon after the incident, appellee , said -that the accident was due to Al-len 's negligence in following him too closely, and in driving a car without brakes. In the trial in 1936, in explaining the same emergency, appellee said: "I looked around and saw Leroy Allen. I would say he was about twenty or thirty yards behind me. • I didn't look back -until I put my hand out as a signal, and that was the first time I saw Allen in the rear. I testified before that when I saw him he was 20 or 25 feet behind me. I am testifying now with all truth and accuracy—after going back there with Mr. Lookadoo (appellee's attorney) and measuring it the best I can remember, and I believe rcan say.this truthfully, it was at least 25 or 30 yards. I know, the difference between a foot and a yard, and I was.just glancing around." The appellee, in explaining at the first trial what he meant by "split second," said : "You couldn't time it like you could if you would get out and measure the time." Yet, on this second trial, he undertakes to do the very thing he said in the first trial could not be done—" get
ARRA MAGNOLIA:* PETROLEUM CO. v. SAUNDERS. 1085 but and measure the . tiMe. 0 -'• St true- tholast expreSsion had reference. tO the diStance , he estimated . Allen • to. :be behind him when 7. first geen, , afid- not . te the: length. of time that elapsed betWeendiscoVery of Allén,:and being 'struck. As so frequently . hratoPe 'ris' 'When • CaSeS ' are , ' • r etried, fallacies , like .these ...beceine .apparent \vhen : the:record is transcribed..- Mathernatical- and 'mechanical inaCcuracies create- impediments whiCh: 'must:be eliminated,. and: the .effort to. readjust, , reappraise, and reconstruct imthoge cases where inconsistencies .Oceur. ifreqUently . gives riSe to verSions and interpretations: More , inconsistent than the inconsistencyit . _ • .-is sought: to(explain:• • , • • • Appellant's .. empIOyee to . ' . whora appellee. testified -he reported that the clatch Wa g slippingtestified that no siich complaint was mak:and g a,ys 'the first information .of such a claim vas received.approximately sixty days .after the accident, -,Appellee . returned . to his worked .emp19.Y.Plent, and . for some time: . Following the accident,: the motorcycle was:taken to an independent repair station,.;but..the record .. there . iii.d.,n , ot;:cliaclose that the clutch waS adjusted; or that any . adjUstment, was needed. :After the accident thomotorcYcle waS' tOWed to appellant 's statien, arid in this PrbeeSS the motcii *as `,_` cranked" by the action Of the ; rear . ' wheelS , tarning the, engine through ,the chitch. It iS in . evidende 'that . the inaChine, Withont any Clutch, adjustmenti: was . thereafter Used 'for inenthS,. and was " Stibjeeted , to exacting tosts'in r comparisbn With a' fieW motOrdycle of sithilár Make. s ' • NO imPerfeCtionS cOnld he detected. •: ' ' ' •i '" • • t . The question O ; f . ' ; • notieethat is, inform • a • tion by appellant that the . clutch. Was . slipping . and a, promise to reliair—is settled by the jury's verdict. it fellows, therefore, that the situation with which we must deal is*.thiS 'Appellee, oPerating a defeetive Machine in . the 'master 's service, 'and driving at a prudent rate of sPeed, Suddenly realized,. .on entering the-intersection' of • Fourth .• 'street and Broadway, that D'aviS,iit . violation of- •traffic rules, was 'approaching' a pOsitien whbre appellee's' safety would be imperiled. It wa g -after dark,• and rain, was falling, as a result of which the . .street V r as ,..wet...:At . a time• when
1086 MAGNOLIA PETROLEUM CO. V. SAUNDERS. [193 - Davis was a few feet in front of hith, appellee shifted into low gear. At the Same tiMe, he held out his left hand as a signal, and synchronizing this movenient with other impulses, as he stopped, aptiellee looked back and saw Allen approaching at 25 miles an hour. At the first trial he says Allen was then from 15 to 25 feet from hini. Now he says the distance was "at least 25 or 30 yards"-75 or 90 feet. Intuitively he accelerated the motor and pressed the foOt lever to engage the clutch, the machine at that time being in loW gear. " His purpose was to "cut" a few feet to the right—far enough forward to avoid Allen, and to the right to avoid Davis. In this instant of peril, he says, ;the clutch failed to hold, and Allen struck from the rear. If the . clutch had functioned properly, he could have reached a place of safety. If appellee had been correct in his first estimate 'of Allen's position and speed, the collision would have occurred in less than 3/4 of a second after the signal was given, for at the speed mentioned the car Would travel 27.48 feet in that time. In Bashfield . 's 'Cyclopedia of Automobile Law and Practice, Vor. 9, p. 539,. it is said that the average person reacts to a warning . in three quarters of one second. For appellee to have reacted to his own peril and to have Co-ordinated and directed his physical agencies, a period . of:ieaction must have intervened. Just what that period was, it would be impossible to .say, but -by analogy it would correspond closely to an individual's reaction to a warning. :Assuming this to be true, then Allen would have struck appellee before his impulse of self-preservation could 'have operated on the agency of protection=that is, the motorcycle. If appellee's reappraisement is correct, and Allen was, in fact, 75 to 90 feet distant when seen in the fleeting glance appellee says he made use'of, then there was no emergency requiring instantaneous application of assured motive power. In this situation, with . Davis passing in front at not more than six feet, Allen, traveling 25 miles an hour, would not have reached the.street
ARK.] 1087 intersection until it had been cleared, and appellee could have reached a point of safety without undue acceleration. When testimony of witnesses is out of harmony and the explanations they make are contradictory, such controversy is properly referable to a jury, and determination of a fact in this manner, if submitted under correct instructions, will not be disturbed on appeal. But where personal testimony is at variance with physical facts, and such repugnance is material, and is also self-evident, improbable conclusions drawn in favor of a party litigant through the sanction of a jury's verdict will not, on appeal, be looked upon as inviolate if in conflict with recognized elements of time, mathematics, and the accepted laws of physics'. St. Louis S. W. Ry. Co. v. Ellenuwod, 123 Ark. 428, 185 S. W. 768. • The declarations of appellee made shortly after the accident, and his testimony in the former trial—these statements when compared with his subsequent opinions expressed in circumstances which make them self-serving –are conclusive.of one of two propositions : either appel-lee did not know how far Allen was back of him, or he intentionally increased the distance in order to facilitate the, objective of his complaint. Appellee's belief • that, but for the negligence of appellant, he would have escaped *injury, is wholly conjectural, and carries us-into a realm of speculation which it is not proper that we should explore. The trial court should have directed a verdict for the defendant. . • • , Reversed and dismissed. HUMPHREYS and MEHAFFY, M., dissent.
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.