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JENKINS v. LONG MOTOR LINES

May 19, 1958

RUBY L. JENKINS, RESPONDENT,
v.
E.L. LONG MOTOR LINES, INC., APPELLANT.



The opinion of the court was delivered by: Taylor, Justice.


   May 19, 1958.
This appeal arises out of an action brought by respondent, Ruby L. Jenkins, against E.L. Long Motor Lines, Inc., for personal injuries alleged to have arisen out of a collision between the car she was driving and a tractor-trailer truck of appellant. The jury's verdict was for $30,000.00 actual damages and $5,000.00 punitive damages, and this appeal presents three questions as set forth in appellant's brief, as follows:

"1. Where Plaintiff contended the Tractor-Trailer Unit was being driven at an excessive rate of speed causing it to overturn and skid on its side down the highway towards plaintiff, did the trial Judge err in excluding the testimony of an expert repairman that in his opinion, based upon an examination of the vehicle involved, that it did not skid on its side as contended?

"2. Is a Motor Truck Carrier liable for damages sustained as a result of improper loading of the vehicle where the loading was done by the shipper, and the defective loading was latent and concealed?

"3. Did the Trial Judge err in holding as a matter of law that defendant had not made a reasonable inspection of the load when it picked up the trailer at the shipper's plant?"

Appellant's tractor and trailer, having been loaded at the Southern Bleachery with 18 tons of cloth in bales and boxes, was traveling west along that portion of Highway 291 known in Greenville as the By-Pass. Rounding a curve to its right, it crossed over to the left-hand side of the road, turned over on its left side and came to rest partly on the left-hand portion of the shoulder, blocking the left portion of the highway. Respondent was driving east meeting the oncoming truck when her car was struck by appellant's vehicle and knocked from the road coming to rest at the bottom of an 18-foot embankment leaving no marks on the embankment or around the wheels of her car, from which it might be concluded that her car was struck with such force that it traveled from the point of impact to where it came to rest without touching the ground. Respondent testified with respect to speed: "* * * He was flying. I have no idea how fast he was going but he was going awfully fast." A decided mark was found in the pavement some 11 or 12 steps long which terminated at the point where the left end of appellant's front bumper came to rest. Respondent also testified that she saw the trailer turn over and slide but that she did not see the tractor turn over. In an effort to meet this line of testimony, appellant asked one of its witnesses, K.C. Mooney, a repairman, whether or not in his opinion the trailer slid along the pavement for any considerable distance. The Trial Judge in his discretion refused to let the witness give his opinion but stated that he could testify to the condition of the trailer and any facts known to him but could not give an opinion as to whether it slid a considerable distance on its side.

After the witness had testified that he had been employed by Cato Trailer Service for 6 1/2 years repairing trailers, etc., and before that by Fruehauf Trailer Service as Parts Manager and Assistant Service Manager and as such he had assisted in repairing many trailers and that he had observed the trailer involved, counsel for respondent objected to the witness giving his conclusions as to the trailer having slid on its side after turning over and the objection was sustained. Pertinent parts of the record on this question disclose the following:

"Q. I will ask you whether or not the left side of this Southeastern Van Lines Trailer that was involved in this accident to your observation gave any indication of having slid along the pavement for any considerable distance.

"Mr. Arnold: I don't believe he can testify as to that, Your Honor.

"The Court: He can tell what condition it was in, Mr. Todd.

"Mr. Todd: I submit he's qualified to give an opinion as to that.

"The Court: He can tell what the condition was, but I will not permit him to speculate.

"Mr. Todd: Will you permit me to get it in the record?

"The Court: Go ahead, Gentlemen, you are excused for a minute.

"Mr. Todd: Based upon your experience repairing numerous wrecks do you have any opinion as to what caused those indentions?

"The Court: I have already ruled on that, Mr. Todd.

"Mr. Todd: Just answer yes or no. Do you have an opinion as to what caused those indentions?

"Mr. Arnold: Your Honor has already ruled it wasn't competent.

"Mr. Todd: I can ask the question.

"Mr. Arnold: Your Honor has already ruled.

"Mr. Todd: I can ask him the question; if his Honor rules it isn't competent, he can't answer it.

"The Court: Well, you've asked him the question, and I ruled he can't answer it.

"Mr. Todd: Very well.

"A. And also the trailer in its upright position, the roof was standing in a bulged-out condition, raised up higher than normal, and the front roofcram was broken loose from the front end area of the body, and there was an indentation in the left corner.

"Q. Let me ask you, is there a railing or a molding going around that trailer? A. Yes, sir, there is a molding in the ...


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