Cooper v. Bennett ( 1927 )

REYNOLDS, J.

OPINION

Only one contention of fact is presented for our decision, namely, whose car, plaintiff’s or defendant’s, first reached and attempted to pass the road-working machine.

Plaintiff, Mrs. M. C. Cooper, testified:

“Q. As you attempted to pass this road-working machine, what happened, if anything?

“A. Well, there was a car passed us just before we went to pass this machine— Mr. Bennett’s ear was behind it, and we passed nearly by and he came in and struck my car.

“Q. You say that there was one car that passed around the road-working machine before you got to it?

“A. Yes, sir.

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“Q. In which direction was Mr. Bennett’s car traveling?

“A. North.

“Q. That was the opposite direction from which you were traveling?

“A. Yes, sir.

“Q. Did he or not attempt to come around the road-working machine and to your side of the road?

“A. Yes, sir; he did.”

Earl Hendrix testified:

“Q. Did you have any accident as you were passing this road machine?

“A. Me and the preacher ran together.

“Q. You mean you and Mr. Bennett — • they call him ‘preacher’?

“A. Yes, sir.

“Q. At about what point — was it to the front end or back end of the machine or middle of the road machine — that you and Mr. Bennett ran together?

“A. It was about the front wheels of the machine.

“Q. Then you had already passed the tractor and' the connecting part between the tractor and the machine before you collided ?

“A. Yes.

“Q. When did you first discover or see that Mr. Bennett was going to attempt to come around the machine and to your side of the road?

“A. Well, when he got close enough to it to go around it.

“Q. At that time, where were you with your car?

“A. I was in front of the tractor.

“Q. When you discovered that he was going to attempt to come around the road machine and to your side of the road, did you have any possible chance to stop your car or to have avoided the collision between you and Mr. Bennett?

“A. No, sir.

“Q. Who was driving Mr. Bennett’s car?

“A. He, himself.”

Prank Strother testified:

“Q. At what point, approximately, did the two cars come togéther?

“A. Well her car was about even with the front wheels of the road machine.

“Q. Did you see or notice any effort of Mr. Bennett to attempt to come on your side of the road until you all had started to pass the tractor?

“A. No, sir.

“Q. After you noticed .that he was attempting to come around the machine, or tractor, was there any possible chance to have avoided an accident?

“A. No, sir.”

Ervin Creed testified:

“Q. Was the Cooper car starting past the tractor before the Bennett car started to pass the road machine?

“A. Yes, sir.

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“Q. Now, where do you say the front end of the Cooper car was at the 'time of the accident?

“A. At the front end of the road machine, the front wheel.” . “

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•Claude Barmore testified:

“Q. With reference to the road machine itself, where did the Cooper and Bennett cars come together?

“A. About the front of the road, machine wheels, behind me.

“Q. Just opposite the front wheels of the road machine?

“A. Yes, sir.

“Q. Then, if I understand you, at the time of the accident, the Cooper car had passed the front of the tractor and had come a distance of about twenty feet; would that be correct?

“A. After it passed the front end of the tractor, yes, sir, something like twenty feet.

“Q. After the Bennett car had passed the rear end of the machine, how far had it gone before the cars came together?

“A. Just about even with the machine.

“Q. And that placed the front end of his car about the front end of the road machine?

“A. Yes, sir.”

Mrs. Frank Strother testified:

“Q. Did you ever leave your right-hand side of the road?

“A. We did not.

“Q. About what place did this collision with Bennett’s car take place?

“A. Back by the machine, we had done passed the tractor.

“Q. If you noticed, how far had you all gotten around this tractor when Mr. Bennett attempted to come by the machine and on which side of the road?

“A. Well, we had just gone beyond the tractor and he started around.”

Jim Anderson testified:

“Q. Had or had not Mr. Cooper’s car started past the tractor before Mr. Bennett made an effort to pass?'

“A. They had done come down -

“Q. Who is ‘they’?

“A. Cooper’s car had done come down on their side of the road before Bennett ever looked even like he was going to start around.

“Q. Then, if I understand you, Bennett left and went to Cooper’s side of the road after Mrs. Cooper’s car had passed the road machine — is that right?

“A. Yes, sir.

“Q. Did Bennett give any signal or warning that he was going to try to go around?

“A. Not any at all.”

The testimony of these witnesses that the collision occurred after plaintiff’s automobile had passed the tractor and was passing the road-working machine is contradicted by that of Mr. and Mrs. Pilgreen and defendant himself, all of whom swear it occurred at the front end of the tractor; but it is our opinion that the testimony of the witnesses from which we have quoted is correct.

Besides this, defendant’s eyesight was defective and he wore eye-glasses and he testified that he had turned to his left and was proceeding to pass the road-working machine without having first looked to see whether he could pass without colliding with the car coming from the opposite direction.

Under all the evidence we are convinced that the judgment of the District Court is correct and accordingly it is affirmed.