Opinion
April 30, 1954.
Appeal from the Circuit Court, Pulaski County, R. C. Tartar, J.
Smith Blackburn, Somerset, for appellant.
Fritz Krueger and Russell Jones, Somerset, for appellee.
The car of Roy Chester Wilkerson collided head-on with the car of Delmer Turner at the intersection of Highways 80 and 461 in Pulaski County. The appellee, T. H. King, a passenger in Wilkerson's car, was injured. Nancy Ann Lawson, a passenger in the Turner Car, was killed. Wilkerson later died from injuries received by him. In the trial of a suit by the administrator of Nancy Ann Lawson against both Turner and Wilkerson, the appellee was called as a witness by Wilkerson and testified that the accident occurred on Wilkerson's side of the road. In the present suit by appellee to recover for his injuries against Wilkerson's administratrix, he recovered judgment based on a jury's verdict in the amount of $5,000.
The appellant argues two grounds for reversal: (1) There is a conflict between appellee's testimony in this case and his testimony in the Lawson case and he is bound by his previous testimony; (2) the physical facts show that the accident occurred on Wilkerson's side of the road.
We find no material conflict between appellee's testimony in the two cases. He testified in the Lawson case that the accident occurred on Wilkerson's side of the road. On cross-examination in this case he testified to the same effect. But that is not the decisive question before us. It has been Turner's contention all along, and is the contention of appellee now, that just prior to the collision Wilkerson cut his vehicle to the left as if he intended to turn off of Highway 80 and enter Highway 461; that Turner thereupon turned his vehicle to his left in order to avoid the Wilkerson car; and that Wilkerson apparently having decided not to turn off of Highway 80 then cut his car back to his right, and into the path of the Turner car. The jury apparently believed the accident occurred in this manner, and the evidence supports its verdict.
Judgment affirmed.