Gordon's Transports, Inc. v. Bailey

294 S.W.2d 313, 41 Tenn. App. 365, 1956 Tenn. App. LEXIS 94

• Court: Court of Appeals of Tennessee
• Decided: February 22, 1956
• Status: Published

Opinions

BEJACH, J.

This cause involves an appeal in the nature of a writ of error, by G-ordon’s Transports, Inc., from a judgment against it in the sum of $20,000 rendered by the Circuit Court of Shelby County, Tennessee. There had been two previous trials of this same cause, both of which resulted in mistrials, but wayside bills of exception seem to have been filed, preserving the testimony in each of the former trials. During the second trial, the defendant in error having been remarried, her declaration was amended to change the name in which she sues from Mary A. Bailey to Mary A. Nunn ally. The suit was originally brought by Mrs. Mary A. Bailey as administratrix of the estate of Frank W. Bailey, deceased, her former husband, on account of his death which was the result of a collision on U. S. Highway 51, near Richview in the State of Illinois, — which collision occurred at about 5:30 A. M., July 30, 1952. The suit, as originally brought, was also against Herman E. Washburn, the driver of plaintiff-in-error’s truck or trailer-tractor combination; and, as originally brought, the suit also sought recovery of property damages in the amount of $1,750. During one of the two former trials, however, a nonsuit was taken as to the property damage claim. A nonsuit was also taken as to Herman E. Washburn.

For convenience, the parties will be styled as in the lower court, plaintiff and defendant, plaintiff-in-error, here having been the defendant in the lower court, and defendant-in-error having been the plaintiff below.

Plaintiff’s declaration alleges her qualification as ad-ministratrix of her deceased husband, Frank W. Bailey, and alleges that he died as a result of a collision between an automobile being driven by him and a motor vehicle of the defendant, driven by one Herman E. Washburn. Plaintiff’s declaration pleads the Illinois wrongful death statute, and alleges that the death of her husband was occasioned by defendant’s negligence in operating its equipment in a careless and reckless manner, upon the wrong side of the highway, failing to keep to the right side of the highway, operating at an excessive speed, not having its vehicle under proper control, not keeping a proper lookout ahead, and in failing to change direction or stop when the perilous situation of plaintiff’s husband became apparent, as a result of which a collision took place in which plaintiff’s said husband was immediately killed. The declaration pleads the statutes of the State of Illinois relative to reckless driving, speed restrictions, driving on the right side of a roadway, passing vehicles proceeding in opposite directions, and regulating the equipment of motor vehicles, which statutes she avers were violated by defendant with resultant death of her husband and damage to her in the amount of $20,000.

Defendant filed pleas of not guilty and contributory negligence. After an order of court requiring it so to do, it also filed special pleas setting forth its defenses, in which special pleas every allegation of common law or statutory negligence alleged in the declaration was denied. Defendant admitted that the accident referred to in the declaration took place at the time and place alleged, and that at that time and place, its equipment was being operated as a common carrier of freight by motor vehicle pursuant to authority of the Interstate Commerce Commission, and averred that at that time and place, its equipment was in perfect mechanical condition and being operated by an experienced driver in a careful, ' cautious and prudent manner. Defendant’s special pleas, filed in the form of an answer, averred further that at the time and place of the accident referred to in the declaration, its agent and servant was operating its equipment in a northerly direction on U. S. Highway 51 N., on the right or easterly side of said highway, at a point approximately one and one-tenth miles north of Eiehview, Illinois, carefully, cautiously, upon the right hand side of the road, at a slow and reasonable rate of speed, and with due regard to the rights and safety of all persons in lawful use of said highway. Said answer averred further that at the time and place of collision with the automobile of plaintiff’s intestate his said automobile was being operated in a southerly direction upon said highway, being driven by said Frank W. Bailey, deceased, and that at a point, where for south bound traffic there is a curve in the road from north to west, which placed Bailey’s automobile, if operated on the right side of said highway, on the inside of said curve. It averred that Bailey was operating his automobile at a high, dangerous, and reckless rate of speed, under the circumstances then existing, and that he drove same suddenly and immediately in front of the motor vehicle equipment being operated by defendant in a northerly direction upon said highway, either losing control of same . or driving same in such manner that it veered across the center of said highway to the left hand side thereof, insofar as Bailey was concerned, crashing same into the left front bumper and front wheel of defendant’s motor vehicle, with the result that both vehicles were pulled across the highway and into an embankment on the westerly side of the highway. It avers that Bailey was operating his automobile without properly adjusted lights and brakes, without keeping a proper lookout ahead, without having the same under control, at a high and dangerous rate of speed, contrary to all laws of the road and statutes enacted by the State of Illinois, and that such acts of said Bailey were acts of negligence which solely and alone caused or proximately contributed to causing the death of said Frank W. Bailey.

By further pleas, the defendant set forth and relied upon the statutes of the State of Illinois, authorizing the Illinois Highway Department of Public Works and Buildings to prescribe speed limits, which make it a misdemeanor for any person to fail to comply with such speed regulations, defining reckless driving, and providing that operation of a yeMcle at a speed greater than is permissible is prima facie evidence of negligence. The defendant further averred in said pleas that the Illinois Department referred to in said statutes had, at the curve upon which the accident here involved occurred, placed traffic control and warning devices indicating the existence of a dangerous curve, establishing a speed limit of 35 miles per hour, and that at said time and place it was ' raining and the highway was wet, and that the said Frank "W. Bailey, in operating his automobile in manner described in the special pleas of defendant, disregarded all speed laws, traffic control devices, warnings and guides, and drove his automobile at a speed in excess of 60 miles per hour, such negligence barring a recovery by plaintiff.

. Without having expressly pleaded same, as it did the Illinois statutory law referred to above, defendant also attempted to rely on the Illinois common law applicable to suits of the nature involved in this cause, notified plaintiff’s attorneys to that effect, and furnished to plaintiff’s attorneys a memorandum of the Illinois decisions establishing and construing such common law. The brief of plaintiff’s attorneys filed in this Court denied that such notice was given to them. Whereupon, defendant’s attorney undertook to suggest a diminution of the record in this cause, so as to bring up to this Court, as part of the record herein, one or both of the wayside bills of exception filed in the lower court after previous mistrials of this cause, — which wayside bills of exception, it was claimed, would establish that such notice was given to plaintiff’s attorneys and that such memorandum of Illinois authorities had been furnished, in compliance with Section 9773.7 of the 1950 Supplement to the Code of Tennessee, now T. C. A. Sec. 24-610, which provides:

‘ ‘ Any party may also present to tlie trial court any admissible evidence of such laws, but, to enable a party to offer evidence of tbe law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleading or otherwise.”

In view of the admission made in open court by plantiff’s attorney, that notice of that character had in-fact been given and such memorandum of authorities furnished, we think it is unnecessary to grant the suggestion of diminution of the record, or issue any writ of certiorari for the purpose of bringing up said wayside bills of exception. We think this is a proper disposition of the matter, notwithstanding the fact that plaintiff’s attorney sought to couple with his said admission, a denial of the conclusions sought to be drawn from that fact by defendant’s attorney. The fact being admitted, the conclusions to be drawn from that fact, are, we think, matters for determination by this Court.

There is also a suggestion of diminution of the record for the purpose of bringing up to this Court special instructions offered in behalf of defendant at the trial of this cause in the lower court, it being alleged that such special instructions had been filed in the lower court but were not included in the transcript sent to this court. This suggestion of diminution of the record, also, we think, should be denied, because the granting of it could serve no useful purpose. The special instructions, even though filed in the lower court, did not become parts of the technical record; and, unless they were incorporated in the bill of exceptions, same did not become and cannot now become, part of the record in this Court. Ward v. State, 102 Tenn. 724-728, 52 S. W. 996; Rhoton v. Burton, 2 Tenn. App. 164, 171-172; Taylor v. Robertson, 12 Tenn. App. 320, 326. Even though these special requests are copied into defendant’s motion for a new trial, and as part of the motion for new trial, are in the transcript before ns, that is not sufficient. Hood v. Grooms, 4 Tenn. App. 511, 515; Adamant Stone & Roofing Co. v. Vaughn, 7 Tenn. App. 170; Taylor v. Robertson, 12 Tenn. App. 320, 326.

At the conclusion of all the evidence, defendant’s attorney made a motion for a directed verdict which was overruled by the trial judge. The cause was then submitted to the jury which returned a verdict in favor of plaintiff in the sum of $20,000. After a motion for a new trial had been overruled, an appeal in the nature of a writ of error was perfected to this Court.

Since the evidence in this cause is material to the disposition made by this Court, a more detailed statement of the facts and testimony establishing same will now be made.

The accident involved in this suit occurred at approximately 5:30 A.M. on the morning of July 30, 1952 on U. S. Highway 51, a little more than one mile north of Richview, Illinois. The highway runs in essentially a north and south direction, is of concrete construction patched with asphalt, 18 feet wide, and with a center line marked on the highway. At the time of the accident a drizzling rain was falling. For south bound traffic there is a very sharp curve to the right, which curve has been designated by Illinois officials as a dangerous curve and zoned for a speed limit of. 35 miles per hour. On the inside or western side of this.curve, there was an embankment approximately 8 feet high with bushes 2 or 3 ieet high on top of this embankment. '

Frank Bailey, a career Navy man, stationed at Great Lakes Naval Training Station in Cliicgo, Illinois, was driving a 1950 Pontiac automobile, weighing approximately 4,000 pounds, in a southerly direction, on a trip to visit his family in Memphis. Official papers in his possession establish that he was authorized to leave Great Lakes at 12:01 A.M. on the morning of the accident. The place of accident is approximately 325 miles south of Great Lakes Training Station. Defendant’s motor equipment, known and designated as a tractor-trailer unit, was being driven by Herman Washburn, a driver with 25 years driving experience. Said Wash-burn was originally joined as a defendant along with defendant corporation, but inasmuch as a non suit has been taken as to him, he is not now involved. Washburn was familiar with the dangerous nature of the curve, as appears from his testimony, and had reduced his speed to about 30 miles per hour as he approached the curve. The tractor-trailer unit was approximately 42 feet long, with a gross weight of approximately 52,000 pounds.

According to the testimony of eye witnesses, the Pontiac automobile was driven at a speed of from 60 to 70 miles per hour in a 35 mile per hour speed zone.

The collision between the vehicles took place at a point approximately 10 feet south of the southern end of the curve. The front center of the Pontiac came into contact with the left front wheel and bumper of the tractor-trailer, turning the front wheels of the tractor sharply to the left and locking them in that position. The driver of the tractor was knocked from under the steering wheel and lost control of his equipment. The Pontiac ploughed under the tractor, which continued to move forward at about one-half to two-thirds speed, pushing the Pontiac along with it in a northwesterly direction across the highway and into the embankment on the western side. Prank Bailey was killed instantly.

There were two eye witnesses to the accident, Herman Washburn, the driver of defendant’s tractor, and Sam Peoples. Peoples was standing approximately 150 feet from the point of impact. Both Washburn and Peoples testified that the point of impact was on the eastern side of the highway.

Shortly after the occurrence of the accident, Eric Nordstrom, an independent investigator, and an undertaker by the name of Gerald Galbreath, arrived at the scene of the accident. Within one hour, Captain Lee Lyons of the Illinois Department of Public Safety, arrived. A study of the physical facts at the scene of the accident was made, within minutes after it had occurred, by Washburn, Peoples, Nordstrom, and Gal-breath. Subsequently, after Captain Lyons had arrived, a similar study was made by Lyons, Washburn, Nord-strom and Galbreath.

Peoples, Lyons, Washburn and Nordstrom testified that a major portion of the debris from the collision was located on the eastern side of the highway, scattering to the west; and that there was a fresh gouged out mark made by the Pontiac, beginning 12 to 18 inches past the center line of the highway on the east side of same, which gouged out mark ran across the center line of the highway in a westerly direction towards the point where the vehicles came to rest, continuing for a distance of 2% feet west of the center line of the highway. There was also testimony that plainly visible dual tire marks ran from the eastern side of the highway to the vehicles. ■'

Peoples, Nordstrom, Washburn and Lyons all state that Galbreath was present, that he discussed the physical facts with each of these two groups of four, and that all, including Galbreath, agreed with respect to debris, tire marks, gouge marks, and that the accident took place on the eastern side of the highway. They also testified that, at the scene of the accident as well as at the subsequent inquest, Galbreath told Washburn that he (Wash-burn) had nothing to worry about, and that it was clear that the accident occurred on his side of the highway.

Galbreath, on the other hand, while he admitted that he was present when the two investigations were made, denied that he agreed to the findings of the two groups of four. He admits that he voiced no disagreement, but denies having seen any debris on the eastern side of the highway. He testified that he saw debris on the western side of the highway, but did not examine it sufficiently to tell of what it was composed. With reference to the gouged out mark, obviously made by the Pontiac, Gal-breath testified that it began at the center line, rather than east of the center line. He denied having told Wash-burn that he had nothing to worry about.

Captain Sam Manning of the Memphis Police Department, introduced as an expert witness by plaintiff, testified that when a heavy vehicle and a light vehicle come together, under circumstances such as were involved in this case, the heavy vehicle never ceases its forward movement, but the vehicles rear up and settle down before the one beneath is mashed into the pavement, and that a vehicle traveling 30 miles per hour will travel 4.4 feet in Vio of a second.

The testimony of Peoples and "Washburn that the vehicles involved in this accident moved continuously from east to west after the impact, is undisputed, as is their testimony that the Pontiac was being driven at a speed of from 60 to 70 miles per hour, which is in violation of the Illinois law pleaded in this cause. Likewise, there is no evidence in the record rebutting the presumption of negligence established by reason of violation of the Illinois statutes in question. There is no evidence in the record tending to establish that plaintiff’s intestate was not guilty of negligence contributing proximately to the accident here involved, which proof is required by the Illinois common law hereinafter referred to, nor that he was exercising due care and caution immediately prior to said accident, which is also required by Illinois law. Indeed, plaintiff’s declaration in this cause does not even allege such freedom from negligence on his part, causing or contributing to the cause of the accident, nor that he was exercising due care and caution immediately prior to the accident.

Defendant, as plaintiff in error in this Court, has filed nine assignments of error. It is not necessary to copy these assignments of error into this opinion, nor to discuss them separately. They raise, as we view them, five questions to be disposed of by this Court. These will be disposed of separately, and the application thereto of the several assignments of error by number will be identified in our discussion.

The first question deals with the refusal of the trial judge to give two special requests presented by defendant.

As was pointed out above, these special requests made by defendant, were not incorporated in the bill of exceptions, and bence cannot be considered by this Court. Ward v. State, 102 Tenn. 724, 728, 52 S. W. 996; Rhoton v. Burton, 2 Tenn. App. 164, 171-172; Taylor v. Robertson, 12 Tenn. App. 320, 326; Hood v. Grooms, 4 Tenn. App. 511, 515; Adamant Stone & Roofing Co. v. Vaughn, 7 Tenn. App. 170. The question here involved was presented by defendant’s assignments of error, 2 and 3. Said assignments are, accordingly, overruled.

The second question, which is presented by defendant’s assignment. of error number six, is whether or not this cause should be reversed because of the failure on the part of the trial judge, in passing on defendant’s motion for a new trial, to exercise his function as the thirteenth juror. The case of McLaughlin v. Broyles, 36 Tenn. App. 391, 255 S. W. (2d) 1020, 1023, is relied on in support of this assignment of error. In that ease, it affirmatively appears that the trial judge had failed to weigh the evidence and exercise his function as a thirteenth juror. The language of the decision expressly authorizes a trial judge to overrule a motion for new trial without comment, in which case, it is said that the presumption will be that he did weigh the evidence and exercise his function as the thirteenth juror. In the instant case, there is no affirmative showing that the trial judge failed to weigh the evidence. Assignment of error number six is, accordingly, overruled.

The third question, which is presented by assignment of error number nine, is whether or not the trial judge erred in admitting in evidence certain photographs alleged to have been taken under the supervision of witness, G-albreath, and which were admitted as Exhibits C, D, and D 1, to his testimony. The objection to these photographs is that they were taken at a different time from the occurrence of the accident involved in this cause, and that they do not correctly reflect the situation existing at the place of the accident.

The general rule is that photographs stand on the same footing as diagrams, maps, or models, and rest to some extent on the credibility of the witness introducing them. Little v. Nashville, C. & St. L. Ry. Co., 39 Tenn. App. 99, 281 S. W. (2d) 284, 293.

The. credibility of witness, Galbreath, was certainly a question for the jury in this cause. Apparently the jury believed his testimony, to the exclusion of a considerable amount of testimony to the contrary. •Under the circumstances, we cannot hold that admission in evidence of these photographs by the trial judge constituted reversible error. Even if the admission in evidence of these photographs be treated as error, such 'error, under the provisions of Section 10,654 of Williams’ Code, Sec. 27-117 Tenn. Code Ann., would not justify a reversal. Assignment of error number nine is, accordingly, overruled.

The fourth question which is presented by assignment of error number one, is the dominant, and in our opinion, the controlling question in this law suit. This assignment of error is as follows:

‘‘The trial court erred in treating the Tennessee contributory negligence rule as the law of the case, basing the charge to the jury thereon, and in refusing ’ to apply the law of Illinois.”

The law of Illinois, as we gather is from the Illinois decisions cited in defendant’s brief in this Court, which Illinois decisions presumably were the same ones contained in the memorandum furnished by defendant’s attorney to plaintiff’s attorney at one of the former trials of this cause, as was admitted by plaintiff’s attorney during the argument in this Court, is that in the absence of wanton or willful misconduct by the defendant it is part of the plaintiff’s case to establish that he was free from negligence which either caused or contributed to the accident sued for.

The Illinois law on this subject is stated in West Chicago St. Ry. Co. v. Liderman, 187 Ill. 463, at page 468, 58 N. E. 367, at page 368, 52 L. R. A. 655, of that opinion by Mr. Justice Wilkin of the Illinois Supreme Court, as follows:

“Counsel for appellee, though insisting that the plaintiff below was shown to have been in the exercise of due care for her personal safety at the time of the accident, insists upon the rule of law held in some jurisdictions to apply in such actions ‘that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.’ Such has never been the law in this state. Here the rule is: ‘Where a party seeks to recover damages for a loss which has been caused by negligence or misconduct he must be able to show that his own negligence or misconduct has not concurred with that of the other party in producing the injury; and the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, bnt also that he exercised proper care and circumspection; or, in other words, that he was not guilty of negligence.’ [Aurora Branch] R. R. Co. v. Crimes, 13 Ill. 585; [Indianapolis & St. L.] R. R. Co. v. Evans, 88 Ill. 63; Arbend v. [Terre Haute & Indianapolis] R. R. Co., 111 Ill. 202; [Calumet Iron &] Steel Co. v. Martin, 115 Ill. 358, 3 N. E. 456; [North Chicago Street] Ry. Co. v. Louis, 138 Ill. 9, 27 N. E. 451; [Illinois Cent.] R. R. Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358; and later cases.”

In the case of Carson Pirie Scott & Co. v. Chicago Rys. Co., 309 Ill. 346, at pages 352-353, 141 N. E. 172, 175 of the opinion in that case written for the Supreme Court of Illinois by Mr. Justice Cartwright, the law is stated as follows:

“It is the settled rule of law of this state that one complaining of negligence merely, where there is no willful act or willful or intentional neglect of duty causing an injury, cannot recover if he was guilty of negligence, contributing to the injury complained of. West Chicago St. R. R. Co. v. Liderman, 187 Ill. 463, 58 N. E. 367, 52 L. R. A. 655; Chicago, Wilmington & Vermilion Coal Co. v. Moran, 210 Ill. 9, 71 N. E. 38; Krieger v. Aurora, Elgin & Chicago R. R. Co., 242 Ill. 544, 90 N. E. 266.”

In the case of Engstrom v. Olson, 248 Ill. App. 480, at page 486, Mr. Justice Boggs stated the law, as follows:

“If both parties in an automobile collision are guilty of negligence which contributed to the same, there can be no recovery by either party. Before either party to a collision can recover against the other, that party mast affirmatively prove negligence on the part of the other which proximately contributed to the collision, and due care on his own part just prior to and at the time of the collision.”

In Foreman Trust & Savings Bank v. Chicago Rapid Transit Co., 252 Ill. App. 151, Mr. Justice McSurely stated the law on this subject, as follows:

“It is established by a large number of decisions, without any dissent, that where a party seeks to recover damages he must be able to show that his own negligence has not concurred with that of the other party in producing the injury, and the burden of proof is upon him to show that he was not guilty of negligence contributing to the injury. West Chicago Street R. R. Co. v. Liderman, 187 Ill. 463 [58 N. E. 367, 52 L. R. A. 655]; City of Macon v. Holcomb, 205 Ill. 643 [69 N. E. 79]; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544 [90 N. E. 266]; Carson Pirie Scott & Co. v. Chicago Rys. Co., 309 Ill. 346 [141 N. E. 172]. The rule is otherwise where the defendant is charged with the wanton and willful infliction of an injury which is not this case.”

If the Illinois law, as announced in the cases referred to above, be applied to the facts developed by the undisputed evidence in the instant case, clearly defendant’s motion for a directed verdict should have been granted. Not only did plaintiff in this cause fail to carry the burden of proof as to freedom from negligence required by the Illinois law; but, in addition, she failed completely to rebut the prima facie ease of negligence on the part of decedent established by the proof that at the time and place of the accident he was exceeding the speed limit established by the Illinois Highway Department.

In support of its contention that Illinois law, as hereinabove stated, is applicable to the case at bar, defendant cites and relies on the case of East Tennessee V. & G. Railway Co. v. Lewis, 89 Tenn. 235, 14 S. W. 603. The first syllabus of this case is as follows:

“In suits brought in Courts of this State to recover for personal injuries inflicted in another State, the law affecting the merits of the controversy, as declared by the Courts of the latter State, controls when in conflict with the decisions of our own Courts.”

The opinion in that case, written by Turney, C. J., is short, and same is quoted, as follows:

“This suit was brought to recover damages for injuries received by an employee in Georgia. The Georgia law governs. There is in the transcript evidence tending to show negligence on the part of the defendant in error at the time of the injury. The court charged the jury: ‘If the defendant’s negligence was the direct or proximate cause of the injury, the plaintiff can recover, even though the plaintiff may have been at fault, if his fault was less in degree than that of the defendant, ’ etc. This was error. The rule as laid down in Railway, etc., Co. v. Kenney, 58 Ga. R., 485, is, ‘To make prima facie case for recovery, a railroad employe, suing the company for a physical injury resulting from an act in which he participated must prove either that he was not to blame or that the company was. The latter, in reply, may defend successfully by disproving either proposition; that is, by showing that the plaintiff was to blame, or that the company was not. If both were to blame, or if neither was, the plaintiff cannot recover.’ The conrt should have so charged. The rule in Tennessee is not applicable to the case. Reverse and remand.” East Tennessee V. & G. Railway Co. v. Lewis, 89 Tenn. 235, 236, 141 S. W. 603.

This case has been cited with approval in Whitlow v. Nashville, C. & St. L. Ry. Co., 114 Tenn. 344, 348, 84 S. W. 618, 68 L. R. A. 503; Sullivan v. Farnsworth, 132 Tenn. 691, 699, 179 S. W. 317; Chumley v. Louisville & N. R. R., 5 Tenn. Civ. App. 73, 77, and In re Pennsylvania R. R. Co., 2 Cir. 48 F. (2d) 559, 565. See also, notes in 32 A. L. R. 796 and 73 A. L. R. 960. So far as we can ascertain, it is still a controlling authority in Tennessee Courts.

But, it is argued that in the case of East Tennessee V. & G. Railway Co. v. Lewis, the Georgia law must have been pleaded as a defense. There is nothing in the reported decision to indicate whether or not this was done; but, if such did occur, the case was decided prior to the enactment by Tennessee of the Uniform Judicial Notice of Foreign Law Act, passed by the Tennessee Legislature as Chapter 137, Public Acts of 1943, appearing in Sections 9773.1-9773.7, Williams’ Code, Secs. 9973.4-9773.9,1950 Supplement to the Code of Tennessee, sections 24-607 to 24-612 Tenn. Code Ann. Section 9773.4 of the 1950 Supplement to the Code of Tennessee, now T. C. A. Sec. 24-607, provides:

“Every court of this state shall take judicial • notice of the common law and the statutes of every state, territory and other jurisdiction of the United States. ’ ’

The above quoted Section was in full force and effect at the time of the trial of the instant case in the lower court.

The laws of other states of the United States dealing with the subject of plaintiff’s own negligence and their effect on the right of recovery, have been applied in this state, among other cases, in Snyder v. Missouri Pac. R. Co., 183 Tenn. 471, 192 S. W. (2d) 1008; Virginia Ave. Coal Co. v. Bailey, 185 Tenn. 242, 205 S. W. (2d) 11; and Rice-Stix Dry Goods Co. v. Self, 20 Tenn. App. 498, 516, 108 S. W. (2d) 132.

Counsel for plaintiff raises three objections to the right of defendant in the instant case to rely on the Illinois law. These objections are:

First, that no notice was given as required by Section 9773.7, 1950 Supplement to the Code of Tennessee.

Second, that the Illinois law here involved, is a matter of procedure as to which the law of Tennessee, being the law of the forum, takes precedence.

Third, that since the defendant, after being required so to do, filed special pleas which did not include any reference to the Illinois law, defendant was, therefore, not entitled to- offer any evidence as to the Illinois law, nor have the Court take judicial notice of same.

The admission made by plaintiff’s attorney in open court, takes care of the first objection. We have already discussed this in connection with our ruling that it obviated the necessity of granting the suggestion of diminution of the record, and further discussion is unnecessary.

With reference to the second objection, that the Illinois law in question is procedural only, and that, therefore, the law of Tennessee, as the law of the forum, should have controlled, we think that the Illinois law in question, although procedural in form, is substantive in effect. American Jurisprudence, under the title “Conflict of Laws”, has this to say on the subject:

“Where the rule of the lex loci, though framed in terms of evidence, presumption, or burden of proof, is such that it goes to the very existence of the contract or the right of the plaintiff to recover, or of the defendant to resist recovery, whether that rule is to be dominated as one of remedy or of substance, the fact is that it affects the substantive rights of the parties and should therefore be applied, notwithstanding a contrary rule of the forum. ’ ’ 11 Am. Jur. pages 523-524, Conflict of Laws, Sec. 203.

In Restatement of the Law, under title “Conflict of Laws”, at Sec. 595, page 710, the following appears:

“Thus if a requirement concerning proof of freedom from fault exists in the law of the place of injury and if such condition is there interpreted as a condition of the cause of action itself, or as affecting the nature or amount of the recovery, the court at the forum will apply the rule of the foreign state. In such a case the remedial and substantive portions of the law are so bound together that the application of the usual procedural rule of the forum would seriously alter the effect of the operative facts under the law of the appropriate foreign state. If there is no serions interference with the court’s legal processes involved, the court will apply the foreign rule as to freedom from fault and the conditions attached by that law thereto.”

An illustration in this text, showing the application of Section 595, quoted above, is on all fours with the facts involved in the instant case. This illustration is as follows:

“(1) A, in the state X, is injured by the alleged negligence of B. A sued B in the state Y. By the law of X, a plaintiff has no cause of action until he has shown that his own negligence did not contribute to his injury. By the law of Y, contributory negligence is an affirmative defense to be pleaded and proved by the defendant. A must show his freedom from contributory negligence.”

For the reasons stated above, we think the Illinois law relied on by the defendant, although procedural in form, is substantive in fact, and should have been applied in the instant case.

The third objection raised by counsel for the plaintiff to the right of defendant to rely on the Illinois law, here involved, is that, because defendant did not plead the Illinois law in question, after being required under the provisions of Section 8767 of the Code of Tennessee, now T. C. A. Sec. 20-921, to plead specially, he should not have been permitted to either prove such law of Illinois, or have the trial court take judicial knowledge of same. This presents a much closer question, in our opinion, than either of the other two objections. Plaintiff’s brief cites and relies on the cases of Provident Life & Accident Insurance Co. v. Prieto, 169 Tenn. 124, 83 S. W. (2d) 251; Creekmore v. Woodard, 192 Tenn. 280, 241 S. W. (2d) 397; Olins v. Shocket, 31 Tenn. App. 346, 215 S. W. (2d) 18, in support of this objection.

The case of Provident Life & Accident Insurance Co. v. Prieto involved a suit on an insurance policy where the defense was that the insured had committed suicide, and, therefore, had not died as the result of an accident. In the opinion of the Supreme Court, the following language appears [169 Tenn. 124, 83 S. W. (2d) 264]:

“It is the object of section 8767, modifying the prior statute, to enable a plaintiff to be forwarned of every matter of defense intended to be relied on by a defendant, and to require a defendant to make explicit all matters of defense which otherwise would be implicit in pleas of the general issue.

“[6-8] Manifestly'had the plaintiff invoked this section, and the defendant had failed to plead suicide it could not have introduced evidence in support of the defense, and consequently the issue based on suicide would have disappeared from the case.”

Although the above quotation may be treated as dictum, it correctly states the law, as was expressly held in Creekmore v. Woodard, 192 Tenn. 280, 241 S. W. (2d) 397, 398. In this latter case, the plaintiff’s declaration alleged various acts of negligence in the driving of the automobile in which Mrs. Creekmore was riding, and alleged that she was driving that automobile at the time, though not its owner. Defendant filed a plea of not guilty to this declaration, but afterwards, being required so to do under provisions of Code Section 8767, she filed special pleas. At the trial of the cause, on objection by the plaintiff, the trial judge refused to allow Mrs. Creekmore to offer evidence to the effect that she was not driving the car, because she had not plead such defense in her special pleas, filed in accordance with Code Section 8767. Plaintiff recovered a judgment which was affirmed by the Court of Appeals, and, although certiorari was granted by the Supreme Court, the judgment of the Court of Appeals was affirmed. In the Supreme Court’s opinion written by Tomlinson, J., the following language appears:

“Implicit in the simple and easily understood words of Code Section 8767 is the fact that when this code section is invoked, the general issue plea, in so far as that suit is concerned, is abolished, and the plea of defendant must set out by certain and express averments and denials the facts relied on as a defense.”

Olins v. Schockett, 31 Tenn. App. 346, 215 S. W. (2d) 18, 25, is to the same effect as Creekmore v. Woodard. In this case, in the opinion of the Court of Appeals (Eastern Section), written by Howard, J., the following language appears:

“(9) Inasmuch as defendants did not plead specially that plaintiffs were guilty of contributory negligence as is required under Code Section 8767, we have not considered the fifth assignment of error. Hammett v. Vogue, 179 Tenn. 284, 165 S. W. (2d) 577.”

It is argued on behalf of the plaintiff that, since, “It is the object of section 8767, modifying the prior statute, to enable the plaintiff to be forewarned of every matter of defense intended to be relied on by defendant, and to require a defendant to make explicit all matters of defense which otherwise would be implicit in pleas of the general issue”, as was said by the Supreme Court in Provident Life & Accident Insurance Co. v. Prieto, 169 Tenn. 124, at page 159, 83 S. W. (2d) at page 264, defendant should not be permitted to rely on the Illinois law because it was not included in the special pleas. The argument is that, since before the enactment of the Uniform Judicial Notice of Foreign Law Act in 1943 the defendant would have had to plead and prove the Illinois law in question before it could be permitted to rely on same, the right of the court to take judicial notice of foreign laws being but a substitute for proof, it cannot supply the absence of pleading.

We would be disposed to adopt this argument but for the fact that plaintiff’s cause of action, as set out in her declaration, is itself grounded upon the Illinois statute which permits a recovery in cases of death by wrongful act, same being Chapter 70, Ill. Eevised Statutes 1955, which is copied in full in the declaration. Since plaintiff seeks a recovery under authority of this law of Illinois, which was enacted by the Legislature of that state, we think her right of recovery must be held to be barred unless the proof establishes what would be held to be a cause of action if suit had been brought under authority of that statute in the state of Illinois, itself. As pointed out above, plaintiff’s declaration in the instant case does not even allege that the deceased was free from contributory negligence which caused or contributed to the accident here involved, nor that at the time and place of said action, he was exercising due care. In view of this fatal omission from the allegations of plaintiff’s declaration, we think it is clear that if same had been filed in the state of Illinois, it would have been demurrable. It probably would not have been demurrable in Tennessee, because, until the Illinois law was called to the attention of the court so as to permit it to take judicial notice of same, the court would properly have indulged in the presumption that the Illinois law on the subject was the same as the law of Tennessee. But, when, at the trial, the judge’s ■attention was called to the Illinois law and the application of same, as embodied in Illinois decisions, pointed out, he should have taken judicial knowledge of that law and sustained defendant’s motion for a directed verdict.

Our own Supreme Court has gone so far in the application of foreign law embodied in an Arkansas statute granting the right of recovery by an administrator for death by wrongful act, as to hold that such law can control the proceeds of a recovery in a suit by such administrator, by requiring that same be distributed according to the Arkansas laws of descent and distribution, notwithstanding the fact that the deceased was a resident of Mississippi where the laws of descent and distribution were different. Hartman v. Duke, 160 Tenn. 134, 22 S. W. (2d) 221.

In our opinion the first assignment of error should be sustained.

The fifth and last question raised by defendant’s assignments of error in this Court is embodied in assignments 4, 5, 7, and 8. It is that there is no evidence to sustain the verdict and judgment in this cause; or, stated differently, that defendant’s motion for a directed verdict should have been granted, independent of whether .or not the Illinois law was applied to the case. Plaintiff’s position is, of course, that this Court is not permitted to weigh the testimony, and that since the testimony of the witness, Gerald Galbreath, was to the effect that all of the debris resulting from the collision was on the west or left hand side of the road, from the point of view of defendant’s driver, and that the gouge marks caused by the Pontiac automobile began at the center line and continued to the west thereof, the jury was authorized to find as a fact that the point of impact was on the west side of the highway, and from that fact infer that the driver of defendant’s vehicle was guilty of negligence, and that the jury’s finding is conclusive, notwithstanding all of the other witnesses, including two eye witnesses, testified to the contrary. Plaintiff’s counsel undertake to bolster this position by pointing out that certain efforts were made to impeach the testimony of some of defendant’s witnesses, and that the jury must be presumed to have discredited their testmiony. This position of plaintiff would be sound, but for the circumstance that the physical facts established by the undisputed testimony, viewing same in the light most favorable to plaintiff, contradict the oral testimony of witness, Galbreath.

Established physical facts are controlling over direct testimony when it is impossible to reconcile the physical facts with the direct testimony. Nashville, C. & St. L. Railroad v. Justice, 5 Tenn. Civ. App. 69, 70-71; Oliver v. Union Transfer Co., 17 Tenn. App. 694, 696-697, 71 S. W. (2d) 478; Harris v. Miller, 24 Tenn. App. 332, 335, 144 S. W. (2d) 7.

That it is impossible to reconcile the testimony of witness, Gerald Galbreath, with the physical facts is established by the testimony of Captain Sam Manning of the Memphis Police Department who was introduced as an expert witness by plaintiff. As such expert witness, be testified that when a heavy and a light vehicle come together, under circumstances such as were involved in the instant case, the heavy vehicle never ceases its forward movement, but the vehicles rear np and settle down before the one beneath is mashed into the pavement, and that this requires an interval of time. He also testified that a one-tenth of a second a vehicle traveling at thirty miles per hour (the rate at which the undisputed testimony shows defendant’s vehicle was traveling), will travel 4.4 feet. Taking, therefore, the testimony of witness, Galbreath, at its face value, it was demonstrated to a mathematical certainty that the point of impact could not have been on the west or defendant’s left hand side of the highway.

Expert testimony may be used to dispel inferences which otherwise might be drawn from circumstances established by other proof. Quaker Oats Co. v. Davis, 33 Tenn. App. 373, 232 S. W. (2d) 282; Tennessee Valley Electric Co-op. v. Harmon, Tenn. App. 286 S. W. (2d) 593, certiorari denied by the Supreme Court, Feb. 3,1956.

Assignments of error 4, 5, 7, and 8 are therefore sustained.

The net result is that assignments of error 2, 3, 6, and 9 are overruled, and assignments of error 1, 4, 5, 7, and 8 are sustained. It follows from our sustaining of these assignments of error that, on either or both of the two theories hereinabove announced, the trial judge should have granted the motion of defendant for a directed verdict. The cause is, accordingly, reversed and dismissed.

The costs are adjudged against the plaintiff, as defendant in error in this Court.

Avery, P. J. (W. S.), and Carney, J., concur.