Fisher v. Elam , 138 So. 201 ( 1931 )

DREW, J.

Plaintiff instituted this suit for damages alleged to have been caused her in an automobile accident, alleging that her car was run into by the car of defendant which was driven by defendant’s minor son.

The defense to the suit is a denial that defendant’s car ran into or struck the car of plaintiff.

The case evolves into a question of fact, and the only question to determine is: Did defendant’s car strike plaintiff’s car? If it did, defendant is liable; otherwise not. The learned judge of the lower court in a well-written opinion held that plaintiff failed to prove that her car was struck by defendant’s car, and rejected her demands. The opinion of the lower court is as follows:

“Plaintiff was driving her Chevrolet Sedan south on the Natehitoehes-Leesville Highway, and when she arrived at a point about one-half mile north of Provencal, she had a wreck, her car swerving in loose gravel, and partially going into a ditch, hitting a stump and injuring her severely and permanently.

“It is claimed that she was struck by a Dodge Coupe, going north, driven by J. B. Elam, Jr., in which C. B. Huson and Willis Johnson were riding with the driver.

“It is not denied that the Dodge so occupied was in that immediate neighborhood at about the time of the wreck.

“The plaintiff testified that she was struck by a Dodge Coupe occupied by three men; the three occupants of the Dodge denying that they struck plaintiff’s car, or came anywhere near doing so; that they remember meeting a Chevrolet driven by a lady about a mile or so away from the scene of the wreck, but did not strike her.

“The evidence in behalf of plaintiff is purely circumstantial. Besides herself, there were two eye-witnesses to the wreck, a Mrs. Bell and her sister, Miss Dowden, both of whom testified on behalf of plaintiff. The accident happened 565 yards from a small bridge in front of the Hawthorne home, the road from there to the scene of the wreck being straight, and being straight beyond that point for a distance of 150 or 200 yards. Mrs. Bell and her sister were in the yard of the Hawthorne home preparing to get in their truck when they saw a coupe going north and occupied by three men, traveling at an ordinary rate of speed, estimated at 35 or 40 miles per hour. They then got into the truck, started the motor, and drove out to the road. When they reached the little bridge, they saw plaintiff’s car just as it turned around and headed into the ditch. Mrs. Bell said that it had been about five minutes since she had seen the coupe pass. We hardly think it had been anything like that long, but it certainly took some appreciable time to get in the truck, settle themselves, start the motor, and drive the truck, changing gears, out to the road. Miss Dowden testified that while she saw plaintiff going into the ditch, she did not see any other car at that time. Mrs. Bell was not asked this question. This testimony would have a very strong tendency toward showing that plaintiff’s car was not struck by any other car at all. Of course, if anything like five minutes elapsed between the time these parties saw the coupe pass and the time they saw the accident occur, then the coupe would have been at least three or four miles away at the time of the accident, for they say the coupe was going 35 or 40 miles per hour. If the coupe was going 40 miles per hour, then it took 28 seconds for it to go from the Hawthorne home to the place of accident and at least 36 seconds to pass beyond the- curve; it took 8 seconds to go from place of accident to the curve. If it took the coupe 8 seconds to make 450 feet at 40 miles per hour (and it was out of sight at the time of the accident), then the Chevrolet traveled at an average speed of only three miles peí; hour° from the time it started on its skidding course, for it went 35 feet. Of course, such a slow speed was impossible. It is not ¿t all likely that such a small fraction of time as 36 seconds elapsed from the time these parties started to get into their truck until they reached the bridge. If more than that time elapsed, the accident could not have been caused by the car they saw pass. If they reached the bridge within that time, the coupe is bound to have been in sight, yet Miss Dowden saw no car. If the car was in sight, and she did not see it, then her power of observation was not very keen and her testimony that no other car passed (while- given truthfully) is not entitled to much weight.

“If the Chevrolet was struck by another car, the only place it was hit was on the hub cap of the left rear wheel; the broken hub cap was found at the supposed place of collision. No passing car could have side-swiped the Chevrolet without leaving some other marks on both the Chevrolet and the other car, yet none were found. If a car had passed exactly in the manner indicated by the tracks, it is possible for the left end of the rear bumper to have struck only the hub cap. But there is only one part of the bumper which would have made the particular indentation found in the Fob cap, and that is the round head of a bolt running through the bumper- from top to bottom, this bolt having either a hexagonal or octagonal nut on the other end. The hub cap was not struct by 'such a nut. The testimony shows that if the round head of the bolt was on the bottom part of the bumper, it might have struck the hub cap and left such a mark, but the testimony shows that the round head of the bolt on the Elam car was on top (and we have no right to disregard such testimony) and we do not see how it was humanly possible for this bolt head on the Elam car to have left such a mark on the hub cap. The spring action might permit such if the found head was on the bottom; but with the round head on top, the axle-housing would prevent the springs from compressing enough to allow the top of the bumper to hit the hub cap.

“The Elam car admittedly stopped at a filling station in Provencal, and we have the testimony of quite a number of men there that no other car went north from the time it left until the accident was reported. This is not absolutely convincing at all. Mr. Dwyer is one of those who so testified, yet Mr. Babbitt who went to Provencal with Mr. Dwyer and was with him when he saw the Elam car, testified that he did not see the Elam car. Mr. Dwyer in his testimony given at Natchitoches, stated that Mrs. Bell (p. 96), said (to him), that a big ear passed them up on the hill, and by the time that Mrs. Bell got to the top of the hill, she saw Mrs. Fisher’s car swerve.’ And again on page 100, he testified:

“ ‘Q. Was there any other car that went down that way before Mrs. Bell came up? A. No, sir. Mrs. Bell’s truck was the only one that left there from where we were, and a minute or two afterwards the big ear left, headed out from the filling station and I saw it. They evidently passed Mrs. Bell’s car around the curve out of my sight, going up the hill, the Dodge coupe did.’

“The above is not in accord with the testimony given by Mrs. Bell.

“Mr. Dwyer likewise testified in regard to a statement made by Mrs. Fisher as she regained consciousness while being moved from her car. Mrs. Fisher says she was unconscious until after she reached Natchitoches, and many others were in just as good a position to hear what she said (if anything) and yet none of them so testify.

“We do not attach much weight to the testimony of Lawrence Fox as to the car traveling a back way from Robeline. We have no reason to doubt that he saw a car so going, but we do doubt his identification. He says, on page 62:

“ ‘A. Mr. Key of Provencal telephoned me to head off a Dodge car at Robeline * * * I went out to head the car off and the car went through the hack street, did not come up the main highway and I missed the car I reckon two minutes.

“ ‘Q. Did you see the car? A. Tes, sir.

“ ‘Q. What kind’ of car was it? A. A Dodge.

“ ‘Q. Dodge what? A. Coupe.’

“And on page 63:

“ ‘A. About a minute, just as quick as I left the telephone, I started to the railroad track, as it was going out the back street, and I seen the car, just seen the dust, got a view of a Dodge car, new car, * * * and.’

“And on page 66:

“ ‘Q. What color was it? A. To tell you the truth I just got a glimpse of it, it was going so fast, I recognized it as a new Dodge car.’

“Defendant’s car was not a new car.

v “ ‘Q. How far were you from it when you saw it? A. One hundred and fifty yards.

“ ‘Q. Traveling so fast that you could not tell the color of it? A. Tes, sir, was driving and the dust was thick, mighty near all over the car, could not hardly tell what kind of a ear it was.’

“Under such conditions we think the witness called on his imagination (perhaps unconsciously) to determine the make of the car.

“The plaintiff in this case was undoubtedly badly hurt, and there are very grave suspicions pointing to the Elam car as the cause of the accident, but we do not consider same strong enough' to fix the liability on it.

“The demands of plaintiff are rejected.”

We find no manifest error in. the judgment of the lower court. The evidence of all of defendant’s witnesses, as well as the evidence of the plaintiff, is that her car and defendant’s car passed one another not less than one mile and probably two miles from Provencal, and her ear was wrecked only about one-half mile from Provencal at a point where it is shown that there was from twelve to fourteen inches of loose gravel on the road. We are of the opinion that the testimony in the case clearly proves that plaintiff’s car was not struck by defendant’s car and it would strain the imagination in utter disregard of the testimony to hold otherwise. The time defendant’s car left Provencal until the time'of the accident, according to plaintiff’s witnesses, makes it impossible for defendant’s car to have been at the place of the" accident at the time it opcurred. There is certainly no manifest error in the judgment of the lower court. -

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.