Dudley v. Batten ( 1970 )

CAMPBELL, Judge.

Plaintiff first assigns as error the exclusion of certain testimony by Willie Best, one of plaintiff’s witnesses, as to what his wife said as the accident occurred. While the substance of what the testimony would have been is not properly in the record, it appears that it would have been to the effect that the defendant’s car hit the deceased. As it had already been stipulated that the defendant was driving the car that hit and killed the deceased, the exclusion of this testimony could not have been prejudicial if it were, in fact, improperly excluded. Plaintiff’s first assignment of error is overruled.

Plaintiff next assigns as error the granting of the directed verdict in favor of the defendant. Two of plaintiff’s witnesses testified that the car of the defendant “ducked” off the road and hit the deceased. The highway patrolman, a witness for plaintiff, who investigated the accident testified that there were no skid marks or tire tracks on the shoulder of the road and that there were chips of paint approximately two feet in from the shoulder on the pavement. The chips of paint were not identified as being from the automobile involved. He testified, without objection, that he calculated that the point of impact was two feet onto the pavement.

The conflict between the eyewitnesses’ and the patrolman’s opinion did not take the case from the twelve fact finders.

New trial.

Judges Britt and Hedrick concur.