Opinion
Nos. 968, 969.
November 25, 1938.
Bowie Bowie, of West Jefferson, N.C., and Cox, Taylor Epps, of Johnson City, Tenn., for plaintiff.
Warren Cantwell and Burrow Burrow, all of Bristol, Tenn., for defendants.
At Law. Actions by Dr. Hugo Hoffman against the Atlantic Greyhound Lines and others to recover for injuries sustained in automobile accident. On plaintiff's motion for a new trial.
Motion overruled.
This matter is pending on plaintiff's motion for new trial. Five grounds are assigned in the motion, but the only one presenting any meritorious or difficult question is that the court erred in admitting evidence over objection of plaintiff that the automobile in which the plaintiff was riding was observed sometime after the wreck in a garage and in free wheeling position, and with the speedometer needle indicating 47 1/2 miles per hour.
There is authority to the effect that the admission of this evidence is erroneous, but likewise authority to the contrary.
There was evidence that the automobile involved was in good mechanical condition. There was no evidence indicating that the free wheeling mechanism had been tampered with subsequent to the accident and prior to the time the mechanism had been observed by the witness. There was no evidence as to the mechanical construction of the speedometer or as to the effect a shock or blow would have upon the needle indicating the rate of speed at which the automobile was travelling at a given time.
I am of opinion that the admission of this evidence under the instructions given by the court did not constitute reversible error, and am of opinion that the result of the trial would be the same if the case were again tried to a jury.
The motion will accordingly be overruled, and this memorandum will apply to both cases Nos. 968 and 969, the cases having been tried together, and the verdict in each having been for the defendant.