1148 1_241
T.I.M.E. FREIGHT, INC. V. RUAL WAYNE MCNEW ET AL
5-4079 411 S. W. 2d 500
Opinion delivered February 20, 1967
1. AUTOMOBILES—INJURY FROM OPERATION—IDENTITY OF OWNERSHIP
OF VEHICLE.—Plaintiffs' testimony, standing alone, was sufficient
to support a finding that defendant's tractor-trailer caused the
accident and was being driven by one of its drivers in the
course of his employment.
2. AUTOMOBILES—INJURY FROM OPERATION—PRESUMP TION & BURDEN
OF PROOF.—Plaintiffs' failure to prove the whereabouts of the
100-odd trailers belonging to defendant that were on interchange
the day of the accident was not fatal to their prima facie case
in view of the evidence.
3. TRIAL—VERDICT & FINDINGs—aEviEw.—Where, with an explana-
tion of the whereabouts of the interchange trailers, the question
for the jury would have been essentially the same as at trial—
weighing probabilities and credibility—the ease was properly
submitted to the jury, whose verdict settled the controversy.
Appeal from Faulkner Circuit Court, Russell Rob-
erts, Judge ; -affirmed. ---
TVnglit, Lindsey & Jennings, for appellant.
Guy H. Jones and Francis T. Donovan and A. K
"Rob" Dawson, for appellee.
GEORGE ROSE SMITH, Justice. This appeal challenges
a verdict and judgment holding the appellant responsi-
ble for a head-on collision that occurred on the night of
March 11, 1965, on Highway 65 in the city of Conway.
T.I.M.E. contends that it was entitled to a directed ver-
dict, for the reason that the appellees' evidence failed
to prove that a T.I.M.E. tractor-trailer unit was involved
in the collision.
The collision took place on a four-lane highway
having two lanes of traffic in each direction. Two cars,
one being driven by the appellee MeNew and the othei
by the appellee Bunting, were approaching each other
in the inner lanes of traffic. According to the appellees'
proof a tractor-trailer rig bearing the letters T.I.M.E.
on the back of the trailer was traveling next to Bunting,
in the outer lane of traffic to his right. The collision was
caused by the negligence of the truckdriver, who at-
.ARK.] T. I. M. E. FREIGHT V. MoNEW 1049
tempted to pass a truck ahead of him and in doing so
side-swiped the Bunting vehicle and knocked it into the
path of the oncoming McNew car. MIS. McNew was killed
and the other occupants of the two cars were injured.
The jury verdicts for the appellees totaled $33,200.00.
The truckdriver in question was never identified,
for he did not stop after the accident. Nevertheless, the
plaintiffs (with whom we align the cross-complainants)
offered proof ordinarily sufficient to support a verdict
against the defendant. Both occupants of the Bunting
car testified that the name T.I.M.E. was painted on the
back of the trailer. Another witness, apparently disin-
terested, testified that a few minutes before the colli-
sion three tractor-trailers bearing the letters T.I.M.E.
on both tractor and trailer were parked at a nearby
truck stop. According to that witness, who arrived at
the scene of the collision soon after the tragedy oc-
curred, the throe T.I.M.E. drivers left the truck stop and
drove off in the direction of the accident at about the
right time for one of them to have been involved. Un-
der our earlier decisions the testimony just summarized,
standing alone, would support a finding that a T.I.M.E.
tractor-trailer caused the accident and that it was being
driven by a T.I.M.E. driver in the course of his employ-
ment. Lion Oil Ref. Co. v. Smith, 199 Ark. 397, 133 S. W.
2d 895 (1939) ; Pluakett-Jarrell Gro. Co. v. Freeman,
192 Ark. 380, 92 S. W. 2d 849 (1936) ; Arkansas Baking
Co. v. Wyman, 185 Ark 310, 47 S. W. 2d 45 (1932).
The appellant argues that its proof overcame the
appellees' prima facie case. T.I.M.E. is a comparatively
large concern operatin g its vehicles from 29 different
terminals scattered over the United States. On the date
of the collision it owried about 1.100 trailers and about
500 tractors. At least nbie of its units ( and perhaps as
many as 36) might have been in the vicinity of Conway
at the time of the accident. Seven of those nine drivers
testified at the trial, each one denying that he was im-
plicated in the collision. By an oversight on T,I.M.E.'s
part the other two drivers were not mentioned in its. an-
1050 T. I. M. E. FREIGHT V. MONEW [241
swers to the plaintiffs' interrogatories and were not
called as witnesses.
In insisting that it was entitled to a directed verdict
T.I.M.E. relies upon proof that about ten per cent of its
trailers were in the possession of other trucking com-
panies on the date of the accident. Such transfers of
possession are referred to as interchanges. An inter-
change occurs when a shipment originating with
T.I.M.E. is turned over to a carrier authorized to serve
the point of destination. In such a situation the neces-
sity for unloading and reloading the shipment is avoid-
ed by releasing the loaded T.I.M.E. trailer to the con-
necting carrier. In a transaction of that kind T.I.M.E.
takes a receipt for its trailer and makes a daily charge
of $10.00 for the use of the vehicle. At the trial neither
side made any attempt to prove the whereabouts of the
100-odd trailers that were on interchange on the day of
the -accident.
Laying aside T.I.M.E.'s much better opportunity to
trace the missing trailers, we are unwilling to say that
the plaintiffs' failure to develop that line of inquiry was
fatal to their prima facie ease. Their testimony placed
at least three T.I.M.E. tractor-trailer units at a point
close enough to the site of the collision to support a
finding that one of them was involved. Moreover, only
about ten per cent of the T.I.M.E. trailers were on in-
terchange ; so the probabilities were about nine to one
that if a T.I.M.E. trailer was actually involved it was
being hauled by a T.I.M.E. tractor.
The ultimately decisive question is whether some
explanation of the whereabouts of the interchanged
trailers was so essential to the plaintiffs' case that the
jury could not fairly and reasonably reach a conclusion
without that explanation. We have no hesitancy in hold-
ing that the asserted gap in the plaintiffs' proof was
not fatal to their causes of action. In no event could the
plaintiffs have done more than track down the drivers
of the unaccounted-for trailers, produce all of them as
witnesses, and submit to the jury a hundred or more
monotonously similar denials of their participation in
ARK.] 1051
the accident. Yet that mass of testimony, even though it
proved to be as favorable as possible to the plaintiffs,
would not carry the jury far in its deliberations. The
guilty truckdriver failed to stop after the collision. It
is altogether unlikely that one of the missing drivers,
when discovered weeks or months later, would volun-
tarily admit that he was the culprit who fled from the
scene. Thus the question for the jury would have been
essentially the same as it was at the actual trial—a mat-
ter of weighing probabilities and credibility. Mathemati-
cal certainty could not be achieved. In the circumstances
the court properly submitted the case to the jury, whose
verdict settles the controversy.
Affirmed.
BROWN, J., dissents.