Bell v. Kroger Co.

Paul Ward, Associate Justice.

On November 23, 1951, about 7:00 p.m., Rickard Neil Bell, tbe husband of appellant, lost his life as the result of a collision between a car which he was driving and a 5-ton truck owned by The Kroger Company and being driven at the time by Windfrey Sory.

Suit was brought by the deceased’s widow to recover damages based on the following allegations of negligence :

The defendant Windfrey Sory failed to yield the right-of-way to the said Richard Neil Bell, deceased; the defendant Windfrey Sory carelessly, recklessly and negligently operated and controlled said five-ton Kroger truck in such a manner as to cause Richard Neil Bell, deceased, to bring and place himself in a position of deadly peril from which he could not escape and where he could not avoid said collision; the defendant Windfrey Sory failed to keep a proper lookout for other persons who may or could have been driving upon said highway at said time and place; the defendant Windfrey Sory operated said Kroger truck at said time and place in such a manner as to create an emergency for the said Richard Neil Bell, deceased, wherein the said Richard Neil Bell, deceased, could not avoid said collision; the defendant Windfrey Sory did operate, drive and maintain said five-ton Kroger truck upon said highway at said time and place without any lights and without proper lights after night time and in darkness and carelessly, recklessly and negligently failed to turn on the lights or sufficient lights on said truck until the said Richard Neil Bell, deceased, had driven his automobile to a point and to a position on said highway where said collision was inevitable and unavoidable; the defendant Windfrey Sory at said time and place recklessly, carelessly and negligently failed to turn on the lights on said Kroger truck in time to warn the said Richard Neil Bell, deceased, of the presence of said Kroger truck.

A trial resulted in a jury verdict in favor of appellant’s estate for $700 but nothing for the widow and children. This appeal is based on the alleged error of the trial court in allowing the introduction in evidence of an instrument known as a Tactograph, together with the testimony relating thereto. Generally speaking, a Tactograph is an instrument containing a clock with a paper dial attached which is fastened onto the motor of a truck in such manner that a needle will indicate on the paper dial the speed of the truck at any given time and also each truck stop and the time thereof.

In taking this appeal appellant designated only the pleadings and that portion of the testimony relating to the Tactograph. Appellees have not designated or brought forward any other portions of the testimony.

The issue presented by this appeal is a novel one in this state, and our research has revealed very little help from other jurisdictions. But after careful consideration we have concluded that the cause must be reversed for either one of two reasons which we hereafter discus®.

No sufficient proof of accuracy. Only two witnesses testified as to the operation of the Tactograph. One was Arthur L. Estes who was in charge of transportation for the Kroger Company, and the other was Windfrey Sory who was driving the truck at the time of the accident. Estes had only general knowledge of the use of the instrument but of his own knowledge he knew nothing of its accuracy. This was clearly revealed by his own testimony.

Q. “Mr. Estes, have you ever tested one of these on a drive yourself?”
A. “I have never tested one, no, sir.”
Q. “And you have no personal knowledge of their accuracy, have you ? ’ ’
A. “No, sir, I don’t have any personal knowledge of their accuracy.”

Mr. Sory was asked if “he ever actually checked one of these graphs against a trip” and he replied that he had and that at one time it was part of his job to do so, and he found them accurate. It is not shown, however, that he had checked this particular one and found it accurate. The contrary is strongly indicated by the record. The Tactograph in question was placed on the truck in 1948 and had never been repaired, although Sory admitted such instruments develop defects. He did state that if a defect occurred the instrument would not work. The record further indicates that this particular instrument was not accurate. Estes testified:

Q. “So that your Tactograph indicates on this graph that this truck did not stop at anytime from 4:30-4:35 in the afternoon until 7:00 o’clock, at the time of the accident?”
A. “That is right.”

But Sory, the driver of the truck, stated that he stopped at Russellville about 5:25, at Atkins about 5:45, also at Morrilton, and at Conway about 6:37. He said the accident happened at 6:55.

In view of the above state of the record and because we are here dealing with a novel concept of evidence, we think the court should have refused to allow the introduction of the Tactograph. In the case of State v. Dantonio (N. J.) 105 A 2d page 918 the court required a much higher degree of proof than is shown by this record.

The testimony was not relevant or competent. It cannot be contended that the Tactograph could possibly reveal any evidence conceivably pertinent to this case except the speed of the truck at the time of the accident. Yet there is nothing in the record to show that “speed” was relied on as an element of negligence. All the allegations of negligence relied on by appellant are set out above. It might be argued that “speed” was implied in the second paragraph if it were not for the fact that the specific acts of negligence are carefully defined in the other paragraphs.

The record does not show that “speed” was relied on in any of the testimony, and we cannot presume that it was. The last sentence of Section 12, Act 555 of 1953 reads:

“Where the record has been abbreviated, by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported by any matter omitted from the record. ’ ’

Sufficiency of Objections. The record discloses appellant indicated her objections on five different occasions. On page 26, when the first effort was made to introduce the Tactograph, she objected; on page 27 she objected to it on the ground of incompetency; on the same page she renewed her exceptions; on page 30 where the graph was finally introduced she saved her exceptions, and; on page 38 she asked that all testimony be stricken because the accuracy of the Tactograph had not been proven.

Although, appellant might have given more specific reasons for objecting in each instance, we think they all clearly indicated the action which she desired the court to take, i.e., exclude the Tactograph and all testimony relative thereto from the record. Section 21 of said Act 555 says that “it is sufficient that a party . . . makes known to the court the action which he desires the court to take ...”

For the errors indicated, the judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.

Holt and McFaddin, JJ., dissent.