*1 858 perjury allegations conform to the
sustain a indictment, acquittal charge would fol- thereof; otherwise an 234 low. S.W. State, See also Clemons Ark. (1921), where we said: a vari- “.. think that the result substantial ."We proof allegations is neces- and the ance between proof sarily proof, must conform failure of for the a allegations, is no does, and, unless there : .” to sustain the verdict. . evidence holding governed by our think this case is We supra, great for there is difference case, a Blevins asking asking generally an article and if he wrote man portion specifically any it. Therefore, him if he wrote allegation and the of the variance between because respect allegedly proof made the statements with appellant, is reversed and dismissed. this cause upon point makes it this
Our dismissal this cause alleged unnecessary to discuss other errors.
Reversed and dismissed. Railway al v. Co. et St. Louis Southwestern Adm'r et al Jackson, Ward 2dW. 416 S. 5-4096 Opinion 1967. delivered June July 26,
[Rehearing 1967.] denied *2 appellant. Wheatley, Deacon, & for Barrett, Smith appellee. Gordon, & Gordon Appellants, Louis South- St. CoNley Byrd, Justice. Railway Simpson, Company; Hank- D. B. 0. western W. question; Massey, A. train ins and J. crew signal for the “Cot- maintainer Slocum, and Gerald appeal favor of judgment Railroad, from a ton Belt” Tommy Jackson, N. of the estates of administrators Tommy Melinda Jr., N. Jackson, Jackson, Catherine was the Jackson, all deceased. The Jackson automobile *3 period, 1 June in third car a two-week from June Fair Oaks with a train at the 1964,to collide southbound County Highway the 64 crosses in Cross where In of the three collisions “Cotton Belt” tracks. each driving into the sun either toward automobiles were morning afternoon; in in the or toward the west east or hit either the second in each the automobiles instance instance train; of a southbound and in each third diesel occupants The killed. of the of automobile were all each Highway flasher erected -the Arkansas State Department 1940 railroad since in and maintained blinking in instance. each that time activated and Highway for a 64 east and west runs almost due railroad, which either side of the considerable distance on Highway 39 direction. runs a northeast-southwest parellels the north the east from side eighty intersecting Highway feet 64 tracks, after parallels the rail- tracks crosses over and east of the going gravel is also a road on west south. There Highway parallels 64 which the railroad south from road approximately on the half mile. About east one Highway Belt” Rail- mile south of 64 the “Cotton half Pacific Railroad tracks. There Missouri road crosses the showing motorist travel- that a westbound ing Highway southbound until 64 could not see a train tracks, and that the view of within 150 feet of he was got he within was obstructed until motorist an eastbound tracks. feet of the 50 quashed jury panel I.
POINT should have been panel preceding because the had served term the court.
Appellants rely upon (Supp. Ark. Ann. 39-225 § Stat. 1965) State, and Edens v. 235 Ark. 2d S. W. (1962). holdWe that the contention is not'well taken Conway- because the Division Second Circuit Court temporarily Act established 1965. This act specifically provided impaneled by that jurors the First eligible Division were to serve in the Division. In Second this situation jury selected at the October term properly serving First Division was at the time of trial, though began even the Second Division a new term on January date when the case was tried. POINT II. The trial court committed error its ruling upon points. several Permitting 11(1). two crossing during
other accidents which occurred at the preceding two weeks.
Appellees prior contend that evidence acci- substantially dents shows that *4 occurred simi- under they lar conditions and were admissible to show a dangerous condition on and condition be- notice of the railroad. of half many years
The facts show that for the railroad was approximately two and half feet elevation one above the highway of that, the and because of the difference elevation, automobiles had slow to down to cross over “hump.” During part Highway the latter improved 64 was is to the extent that now a 24-foot asphalt pavement shoulders, with two and the elevation practically has been raised even with railroad so that longer automobiles no slow down to cross the railroad. Following improvement Highway on June 1,1964, 6,1964, at 8 a.m. at 6 -.15 -.35 and June a.m. fatal crossing. these In each at same
accidents occurred this the second with either collided accidents a motor vehicle freight The train. or third diesel unit of a southbound p.m. 5:25 June accident at here occurred on issue diesel with the second and motor also collided vehicle freight three accidents unit All of a southbound train. substantially in that conditions, similar occurred under directly rising setting line with almost sun and only highway The the horizon. and rather low on difference in is that Jacksons the factual situations traveling were traveling two vehicles west while other visibility motorists
east. The to obstruction substantially they approach to the north as traveling or west. the same whether are east through request admission of railroad, Agent for the fact, Mitchell, admitted that C. C. Claim following first collisions “Cotton two Belt,” Highway question, before the collision in called the State repre- Department that a 10, 1964, on June asked go Highway Department him to sentative of with check suggested time the Fair Oaks Mr. Mitchell at the trip during the week of that the be made June again Highway Depart- 21, but on 15 he June called the arrangements ment and made for Lester Jester such Department accompany 17. him to Fair Oaks on June appellees offered the fol- trial,
At close of the lowing instruction: prior
“You accidents are instructed evidence of by you negli- cannot considered as evidence of be gence company its on behalf or em- ployees. prior only
“Evidence of accidents admissible *5 dangerous show condition and notice of that con- company dition on behalf of the railroad and its employees. signs by Depart- Highway
“Evidence erected you ment after the accident cannot be considered negligence as on behalf of the railroad evidence company employees. or its you only
“Such evidence can considered for be purpose showing Tommy or not whether Jack- son and Catherine were in exercise of Jackson they .approached crossing.” due care as appellants giving When in- objected to the it struction was withdrawn. points
The in A. L. R. annotation 2d 170 out 38 states and several of the courts held evi- federal have prior place of a similar dence accident at the same as dangerous accident admissible to establish a condition at the or defective place in.question, dangerous where the place question condition of the issue. In addition, 36 such states and several of the federal courts have held such evidence admissible to show defendant’s notice of the existence of the defect. 70 A. L. annotation, 170, 172, R. 2d states that strongest type on evidence of the here attack consid- upon grounds
ered has been based of trial convenience upon relevancy. rather than its lack of In the earlier expressed cases, the courts the fear that if the evidence disrupted were received the trial would the neces- be sity investigating all the circumstances various question, incidents in and concluded that the most desir- able solution was to exclude such However, all evidence. tendency in more recent decisions the has been to leave to it the trial judge each case determine whether ground the evidence should be excluded on the collateral and to determine the extent to which the earlier investigated. accident can be Lindquist Ry.
In v. D. M. Co., Union Iowa (1948), N. parked 2d 120 W. defendant had a box charged car on a It was that the railroad had ordinary plaintiff failed to exercise and others care using highway by knowingly creating a hazardous
864 holding in exclud- erred trial court that the In
condition.
ing testimony
near-accidents, and
accidents,
of other
place under the
same
at the
of witnesses
observations
said:
circumstances,
or similar
same
court
“
principal
rejec
. .
reasons
.
One
collateral
injects
is that- it
of
tion
such
evidence
However, this
issues
the case on trial.
into
liability
theory
any
upon
of
is not offered
dispute
part
the acci
made as to
of
No
is
appellee.
in
recovery
no
thereof,
account
asked on
dents, no
showing
merely
damages sought.
It is
crease
place
happen
under sub
same
did
at the
an accident
stantially
an
is no more
It
circumstances.
similar
type
than
of case
issues in this
of collateral
injection
negligence
types
we have
in which
cases
in other
upheld
of
admissibility
type
evidence.
such
of
of
Burlington,
City
Frohs
135;
49 Iowa
v.
See Moore
City
Dubuque,
341;
N. W.
80
219,
v.
Spurling
109 Iowa
Incorporated
195
Stratford,
v.
Town of
cases);
(defective sidewalk
“Where or or notice of a defect is in issue, evidence occurrence or near-occur- particular rence of other accidents or at a injuries place doing particular or a from the act or employment particular appliance of a or on method prior question occasion to the one to admissible person charged show that the knew or should have danger known of the or ...” therein thereat. Colyar Bottling
The issue
v.
Little Rock
Works,
(1914),
In
v.
State
Ark. 17,
In
Ark. 453,
Hall
Appellees that the was abnor- here contend oper- negligent mally dangerous; the railroad speed knowl- ating because of the train at excessive its alleged respect edge defective condi- to the with had crossing; failed to use and that the tion of warning approach ordinary give the train’s care to traveling public permit reasonably sufficient to safety. Thus it is seen reasonable with use the prior 1 and similar accidents June that the evidence abnormally dan- show both the 6 was June gerous relevant notice crossing and the railroad’s condition knowledge something abnormally dan- that there was or gerous about the coui’t has in which this
In cited herein all. cases the evidence of *8 properly prior was occurrences held that difficulty admitted, no trial should have been admitted or investigation experienced regarding of col- the has been expressed appears that the matters. It therefore lateral if such evidence were decisions, that fears of the earlier necessity disrupted the be trial would received the investigating The are unfounded. matters, collateral prior proof two that the of the here indicates record collisions and their similarity .up taken with the pretrial When .the matter court at a conference. trial forthcoming surprise to either handled, thus no is by determining party who the wit- court, trial and. the substantially going their testi- be and what nesses are to mony his discretion to that time be, will can at exercise will, testimony inject whether admission of the determine many issues. too collateral
Consequently, not err the trial court did we hold that concerning prior admitting testimony two accidents in substantially conditions for similar occurred under that knowledge showing purpose of the the railroad’s anything find Nor can we of the condition Ry. Fleming, Ark. Co., &Ark. Adm’x v. Missouri (1939), which that such evidence 2d 986 holds S. W. knowledge may notice and to show not be introduced similarity prior collisions of the the substantial where present is shown. collision to 11(2). Allowing changes evidence of signal signs lights highway in the sub- made sequent to the accident. point topic appellees
The first under this is that were permitted to introduce evidence on direct examination signal lights brighter that were much after acci- Appellants complain dent. also that such evidence was brought on out cross examination of their witnesses who signal lights days had viewed the three after the accident. objection changes to such were signal subsequent made lenses to accident as part system-wide dhangeover of a new stand- equipment ard and that brighter suggest after in- the accident was to jury something
ference to the had been done signal lights.
The record shows also that after the other two acci- experimental dents and one, before this lens an top signal light installed on the on southwest crossing, particular signal light side but that the traveling High- was directed toward motorists north way traveling 39 and could not be seen those west on Highway 64.
Appellees repairs subsequent admit that evidence of precautions alleged or taken the tort feasor after an negligence, accident is not but admissible to show con- subsequent changes, repairs, pre- tend that evidence of cautions is admissible to show or at the time
conditions of impeachment purposes. injury the for is and There also suggestion purposes a that it was admissible of for the comparison lights witnesses’ of the before and after. testimony changes signal lights The direct in the crossing poses problem at this railroad a in the trial of elapses a lawsuit where considerable time between the impossible collision It and trial. would be almost to impanel jury, many or some whom have not ob- signal lights crossings appellants’ served at where changeover lights expect- have been installed. Jurors are
868 and their sense obser-
ed and instructed to common nse parties. determining the fact between vations issues juror bas become In this situation a conscientious who brighter improved lights and after accustomed to tbe testimony changeover may good doubt have reason to signal lights about at time of the dimness changes aware of made collision, is unless he made purposes after collision for and before trial show- ing injury. at time of conditions inadmissibility admissibility of evidence
The subject and 64A.L.R. A.L.R.7 annotations in 170 testimony permit many 2d 1296. The cases there cited changed jurors. viewed conditions of matters to show Panagoulis Philip H. & N. Co., v. Morris See change (1949), between 2d in condition of handrail A. Agler also Schine jury; time and view injury (1938), App. E. N. 2d Co., 68, 17 Theatrical 59 Ohio signboard condition to show after accident alteration to of injury. at time testimony example involved in the
An of the direct Bennie Holmes: instant case of witness any change lights after June in the there “Q. Was intensity? their reference to 14, 1964, with brighter.” lot A. are a court hold that the trial we Under circumstances admitting its discretion did not abuse the time of conditions at the to show Appellants be limited to not ask that did collision. allege position purpose, not now a are error. apt trial, we on a new issue is arise this
Because point not admissible that such out intensity signal comparison purposes of the *10 appellees can- lights. mean, however, that This does not experimental for use of installed lens one not use purposes Highway of com- 39 for on northbound traffic category parison. of sub- That lens does not fall into the repairs precautions sequent since it existed at or collision. time of the by appellees on cross examina-
The evidence elicited appellants’ and Lee Gib- tion witnesses Lester Jester category. After it was shown bons falls into different testimony their concerned their observations made following appellees 14, on collision June June certainly by way explanation were entitled or rebuttal any changes whether had been made determine signal between the date the collision and .of their date of observations.
Appellants allege error in the admission of evidence signs following changes highway relative accident. Of course this is not to the subject subsequent changes repairs, exclusion of because these by appellants Highway were not made but the State Department. certainly Further, such ad- explain signs markings missible to that the in the photographs by appellees placed introduced were there after the accident.
Appellants’ alleged respect error with to introduc- High- tion of an inter-office memorandum of the State way Department arose in this manner. Lester Jester employees Highway Gibbons, Lee De- State partment Planning Division, and Besearch testified request that on June of the railroad’s Agent, they crossing; Chief Claims visited the Fair Oaks signal lights visible from a distance of crossing; 1,500 feet back from the and that no made requesting as a result their recommendations, any visit, appel- action railroad. On cross examination brought prepared lees out an inter-office memorandum part the two witnesses. The memorandum in states:
“. . . Three accidents have occurred at this location past resulting within the two weeks in seven fatali- ties. In all cases the vehicles involved hit the train impact indicating with a hard not the drivers had *11 crossing railroad been made aware of highway apparent danger. re- This section of has cently a result and as been widened and resurfaced speed increased. It is believed has vehicles signs proposed measures, in addition to the will Division, Traffic erected this week Services crossing properly alert the motorists the railroad . involved.
# # [*] repre- a will be made with observances “Additional company 22nd and railroad of the June sentative may study taken measures that be 23, 19.64,to company.” the< existing when the inter-
Under the circumstances certainly presented, ad- it was was office memorandum impeach about witnesses missible to explain signal adequacy their and recommendations re- made no had statement any questing action the railroad. showing Permitting 11(3).
POINT Tommy involved, Jackson, driver the automobile good driver. a was careful merit. is without See contention
This Bush (1918) and Arkansas S. 136Ark. 206 W. Brewer, Light 2d 182 Ark. 28 S. Cummins, W. & Co. v. Power negligence (1930). where held that We there charged charged, there of the one and caution care disprove tending and a circumstance with relevant negligence. to show be Likewise, would admissible negligence charged person reckless with a that a prove tending to fact. driver as a circumstance Permitting expert testimony 11(4).- rel- and that to the ative of friction coefficient dangerous. abnormally purposes showing stopping For the distance traveling approach- per of vehicle 60 miles hour when ing crossing, appellees Safety Director for used the Pepsi Bottling Company Cola Tulsa, Oklahoma. *12 permitted testify court Mr. Coulson to about his The experiments to determine the of friction and coefficient stopping traveling braking distance of cars per approaching crossing. Appel- miles hour when complain experiments lants that made in these an automobile of a different make from driven family. Jackson In this we find no for the error, coeffi- scientifically cient of friction can be established. Further- more, in this instance the witness stated that the make or model of any the automobile involved would make not appreciable difference. admitting We hold trial court erred in
expert testimony abnormally dangerous about the condi- crossing. tion of the submitted to The.facts the witness opinion for the basis of his were as follows: type highway. 1. The speed
2. approaching The of automobiles the cross- ing.. approach crossing namely, straight
3. The to — highway running level due east and west. warning signs. 4. The advance daily 5. The number of vehicles that cross the pass crossing 6. The number trains daily. speed
7. The of the tráins. angle approaches namely, right
.8. The of the — angles. . to vision of motorist. 9.Obstruction vision of train crew. 10. Obstruction to recently that bad occurred 11. Previous accidents conditions. under similar elements to motorists. 12. Distraction signals. 13. Bailroad day. 14. kind of position sun.
15. The foregoing single individ facts taken one of the Not a *13 average comprehension ually beyond juror; average say any juror that an we find reason to nor can competent when from the facts determine not to would be abnormally together whether the considered consistently dangerous. preju held it is We have testimony expert issues which on error to admit dicial conveniently from jury demonstrated to could be & they conclusions. See S S draw their own which could 2d 241 Ark. S. W. Stacks, Construction Co. (1967). com trial court hold that Therefore we expert admitting error in mitted reversible dangerous crossing. abnormally on the Allowing regulations railway 11(5). en- “Special 2” be introduced Instructions No. to titled evidence. appellants,
Appellees, intro- objection over the “Special 2.” Instructions No. document entitled duced a govern railroad which are detailed instructions These telegraph yard, engine, employees station and train, way and structures. service as well as in maintenance placing Appellees’ in evi- when the document counsel, he did so order the trial court that dence, advised speed had estab- that the railroad limitation on show the crossings at tte Oaks listed certain otter ttan Fair Crossing. background
No factual was laid tte introduction stowing relevancy made, tte i.e., no document— crossings, to controls or at relative conditions otter time tte tte document was introduced or later. Wtile we agree appellees with entitled to stow ttat are speed appellants tte issue of ttat tave slowed down at crossings ttey danger- similar wtere tad tad notice of introducing regula- ous ttink condition, we ttat before involving crossings, tions other there should first be a similarity foundation laid to show of conditions. some great Furthermore, we ttink it was too a burden on tte regulating speed railroad to introduce a document every crossing system. trains at in its whole It would be a Herculean task to furnish rebuttal for tte myriad requiring speeds causes reduction of on all suet crossings system. in the whole involving
Questions tte admission into evidence of safety regulations negligence usually to show arise wtere regulations, there is regula- a violation of tte and suet tions are admitted as some evidence of tte measure of ought caution which to be exercised in situations to apply. which tte rules 50 A. L. R. 16; 2d 44 Am. Jur. relevancy safety regulations § Railroads 626. Tte of tte negligence regula- issue on tte is often shown tte *14 tion itself, but such is not the here. fact case The that regulations the requiring railroad has tte reduction of speed crossings probative tte of trains at otter has no value to tte issues here involved is until it shown ttat speed safety tte reduction was caused a railroad policy public. readily toward tte Thus it can be seen regulation requiring ttat speed tte reduction of crossing, municipal another because of a ordinance, has probative no value the is wtere issue a violation of a company safety policy public. toward tte
Therefore, we told ttat it was error for the trial permit court to introduction of tte document without a having limiting foundation first been laid and without crossings the which foundation had the to on document reversing we this In fact that are been laid. view the 11(4) above, in Point forth of the error set case because was prejudicial. this error we need not decide whether explanation is not the record clear the because make We any portion jury. to the document was read that the Giving 11(6). on instruction exces- an sivespeed trains. 11(7), pointed Point out under as will be record, go to to evidence was sufficient shows that there
infra, abnormally dangerous There an jury the to the north track that the view of railroad approaching until obstructed motorist was an Many got wit- within 150 feet of tracks. motorist signal lights were dim and that that the nesses testified crossing approaching into either when headed when evening morning im- early it almost sun was or late looking possible them. for one was to see the unless appeared nearby it stated One witness who worked highway traveling often saw to him motorists lights. Furthermore, the testimony before saw the train recently similar been two shows that there had appeared in which it that the motorists accidents signal lights ap- of the train’s not made aware following proach, claims these the chief and that accidents Highway Depart- agent called the State inspect appointment made an ment and weeks time. some two from that view of the motorists’s While approaching he within until was an 150 train was obstructed he this mean that track, we do not take
feet got any situation until he could not have seen a train exhibits intro- fact, track. In within 150 feet of the testimony indicate from the inferences duced and the approxi- within a distance that when a train moves mately highway, is visible to a 200 feet or less to the greater feet from the the 150 at a distance than motorist
875 railroad and of the fact that the Therefore, in view something put was its train crew were on notice that crossing, wrong particular the fact that the and at the approaching sight train of an a distance motorist «approached 200 feet of the increased as the within train crossing, highway excessive that the issue of we hold speed properly Sherman, jury. submitted to the See Ry. Co., 238 Ark. 383 554, Adm’x. v. Missouri S. W. Pac. Ry. Harper Co., 2d and v. Missouri Pac. 881 (1964) (1958). 348, Ark. S. W. 2d 696 Under the circum ques speed here excessive train stances became a of fact for the jury. determination tion 11(7). Submitting abnormally issue of dangerous crossing jury. abnormally dangerous crossing
Our instruction, AMI being Fleming, based on our decision in Adm’x v. Ry. Missouri & Ark. Co., 198 Ark. S. W. (1939), given provides which was instance, this as follows: Charley Eddy,
“Plaintiffs, Ward Jackson and grade Administrators, contend that the railroad crossing abnormally dangerous, in this case was proving proposition. have burden this grade crossing frequently “If a used traveling public, pass if trains it fre- over quently, crossing dangerous if the is so because surrounding reasonably circumstances that a care- in person safety ful could not use it with reasonable special warnings, the absence of then would be an abnormally dangerous crossing. the rail- Whether grade crossing abnormally road in this case was dangerous you is for to decide. you abnormally
“If find that dangerous, Ias have defined that then it was term, duty give ordinary of the railroad to use care to warning reasonably permit sufficient to the travel-
876
ing public crossing to use the with reasonable ’’ safety. High- daily shows traffic count on the record a Here way crossing May a 64 Fair from low of at the Oaks August day. high per An 1,141 age of cars aver- 1,899 to a per day 16.4 over the trains traveled motorist’s we the obstructions to the When consider approaching trains, southbound view of signal lights, the fre- and to the dimness of relative quency crossing by both motorists and of use of sufficient to warrant evidence was we hold that the trains, abnormally crossing dangerous giving instruc- jury. tion to the Fleming, & v. Missouri construe Adm’x
We do not Ry. supra, Harper Ry. Co., Pac. Co., v. Missouri Ark. duty discharged supra, holding its has as that a dangerous abnormally give warning an to a upon signal evi- sufficient found, are where the warning approach- inadequate give to to be dence, ing motorists. Permitting grandparents 11(8). to re- anguish damages occasioned mental
cover grandchildren children such where death father them. survived premise
Appellants’ on here based contention Tommy moments after few lived some Jackson premise, appellants, this Based on his children. death Peugh Oliger, 281, relying Adm’x, 233 Ark. v. recovery (1961), of mental which limits S. 2dW. anguish decedent, and Smith of a “heir at law” to the (1958), contend 2d 275 Ark. 317 S. W. Smith, anguish any died with for mental of action cause Tommy Jackson. A. conductor, J. the Senyard, from elicited
There from Jr., E. Massey, F. brakeman, occupants the auto- all could find that jury which instantly, and nnder mobile were killed these circum- properly jury. stances issue was submitted anguish It is true when had we our mental Peugh, supra, statute before us we there limited *17 recovery anguish to “heirs for mental at law” family is However, decedent. where a whole killed in a moments, here, matter of as is the the bench situation expect interpretation and bar should not a too literal Peugh. law” words “heirs at as the same are used in creating right Act 255 of for mental to recover anguish,. certainly right did not intend that to be so limited. 11(9). appel
POINT We merit can find no in lants’ contention that the case should been sub have upon interrogatories. mitted to jury This is a matter within the sound discretion of the trial court. Louis St. Ry.W. Robinson, S. Co. v. 308 Ark. 2d S. W. (1957). 11(10). agree appellants We with it was error for the trial court to jury submit to the required against form of verdict which verdicts all the including employee against defendants, defendants, if any defendant.
POINT III. The should directed a court have employee verdict for defendants.
Appellees agree only negligence chargeable Simpson, Massey to D. W. B. 0. Hankins A. and J. under speed. the issues in this case was the issue excessive Massey, charge A. J. conductor, was in of along engineer, Simpson, train, and with the W. D. was responsible operation for the of the train. In view of holding the fact we are that the issue of excessive speed properly was jury, submitted to the we must hold properly that the trial court denied the directed verdict showing as to However, them. there no that B. 0. any way charged with fireman, Hankins, Consequently speed we was rnn. train at which the his to a verdict directed hold that he entitled favor. charged signal Slocum, was maintainer, Herald signal failing properly negligence maintain
with lights they they he not so defective could in that were testimony showing that he seen. this issue there On lights repaired between the June collision had the present 14, hut that the collision on June comply estab- with standards so dim that did not of American Bailroads lished Association Department. adopted Highway Under the circum- say unwilling to a that he was entitled stances we are verdict. directed *18 directed IV V. The court should have
POINTS and jury appellants and the verdict verdict all against weight evidence. pointed evidence out, As been there was sufficient has speed and to submit the issues of excessive jury abnormally dangerous crossing, except errors and, for the to sustain the committed, the evidence sufficient verdict. jury this out, heretofore set
Therefore, for the errors against all case is reversed remanded for a new trial and except It and B. 0. Hankins. reversed defendants B. as to 0. Hankins. dismissed eoncur. and FoglemaN, JJ., Brown, WaRD, concurring. I A. concur Justice, FoglemaN, JohN reaching nor in the but all bases for it result not assignments holdings overruling error. those certain 11(4), 11(1), 11(2), I I, would reverse on Points 11(5) 11(10). I failure to direct would also reverse on appellant 11(1) I think Hankins. On Point a verdict for proper Railway Company distinction is made in v. Harrell, 58 Ark. S. W. 117. Such evidence only machinery admissible to show use of defective equipment knowledge and the of such use the owner or operator, impossible impracticable when it is or to obtain proof particular direct of the fact. The evidence was not purpose offered for this and there was other evidence actually abnormally used to show that this was an dangerous crossing. proper might With the foundation it machinery appliances be used to show that or were de- operator knowledge fective and that the had thereof. 11(2) any On I Point do not think there was jury view required explanation, nor Ido think we should jury assume that the was familiar with the conditions at the time of trial. After witnesses testified as to condi- tions on certainly proper a later date, was to show the existing differences between conditions on the two dates. proper It was also highway signs show which of the pictures shown in place not the time of the collision. Ins. Co.
St. Paul Fire & Marine et al. Wood 5-4148 2d 322 416 S. W.
Opinion delivered June
[Rehearing July 26, denied 1967.]