S AND S CONSTR. CO. V. STACKS

1096 [241 S AND S CONSTRUCTION CO. ET AL V . A. J. STACKS ET AL 5-4116 411 8 W. 2d 508 Opinion delivered February 20, 1967 EVIDENCE—OPINION EVIDENCE—GROUNDS FOR ADMISSION.—Admis sion of investigating officer's opinion testimony as to the point of impact of vehicles involved in collision held error.

Appeal from Conway Circuit Court, Russell C. Rob- erts, Judge; reversed and remanded.

S. Hubert 11Ittues Jr. for appellant.

Felver A. Rowell Jr. for appellee. CbNLEY BYRD, Justice. Appellants, S and S Con- struction Company and Marvin Sherman, bring this ap- peal-from a tort judgmentin_ favor of _the owner,. driver and passengers of an automobile which was involved with appellants' 2010 John Deere tractor, equipped with a front end loader and back hoe attachment and being used in construction of a sewer near Highway 64 in the city of Plumerville, Conway County, Arkansas. Appel- lants rely upon two points only for reversal: I. The trial court erred in admitting the opinion testimony of the investigating officer as to the point of impact. II. The verdicts for personal injuries of appellees in this case were grossly excessive.

The facts show that appellees, Mr. A. J. Stacks et al, were traveling west on Highway 64 in the city of Plumer- ville when they struck the front end loader scoop with the right side of their vehicle, and then struck a cotton trailer proceeding in the opposite direction. The driver and two passengers were in appellees' vehicle, and the operator and two witnesses for appellants were present at the time of the occurrence, all of whom testified as to the point of impact. Notwithstanding, appellee's called

ARK.] S AND S CONSTR. CO . V. STACKS 1097

the officer who arrived at the scene of the accident some twenty or thirty minutes later and asked him if he were able to determine the point of impact between the 2010 John Deere pay loader and the Stacks automobile. The state trooper testified that from the debris and the tire marks he was so able to determine the point of impact. Over the objection of appellants the trooper was permitted to testify as follows : "The Stacks ear was traveling west—Of course, when I arrived at the scene, as I said, the payloader was sitting off the pavement on the shoulder, but had been in this position, digging a ditch putting in a sewer system. And on the front of the payloader is a ditch digger ; and on the back of this loader is a scoop where they pick up the dirt and load it on the truck. It wa g sitting in this position digging this ditch, with, the scoop overhanging out into the west hound lane of traffic. The vehicle traveling west hit the back end of the scoop of the payloader." (Em- phasis added.) We had a similar problem before us in Reed, v. Hum- phreys, 237 Ark. 315, 373 S. W 2d 580 (1963). We there said: " The collision here in question was uncomplicated and there were photographs of the automobile, truck, and the scene of the accident, showing gouges and marks on and off the road, as well as testimony of witnesses who vividly described the conditions prevailing and the scene. The police officer's testi- mony conflicts in part with testimony of some of ap pellee's witnesses who arrived at the scene before the officer ; however, virtually the only fact testified to by the officer not already clearly coveTed testimony of witnesses for both appelle and appel- lants was the location of debris on the highway. which the officer testified about, in detail and at length. As was stated in the Waters case, supra, 'The facts to be determined were not complicated.

1098 [24 -1- This was a relatively simple collision. Certainly there was no evidence to indicate that it was beyond the jury's ability to understand the facts and draw it's own conclusions. The state of the record being thus, we find that the trial court erred in allowing appellee to resort to such expert opinion.' "It follows, therefore, in the present case, that the trial court committed no error in excluding the police officer 's testimony. In so holding, we take,. this occa- sion to restate the rule so succinctly stated in Cahil v. Bradford, 172 Ark. 69, 287 S. W. 595, 'Opinion evidence is not admissible when the fact is suscepti- ble of being adequately exhibited to the jury in the ordinary way.' Therefore, we hold that the admission of the officer's opinion testimony as -to the point of impact was error. - While the damages awarded appellees are a bit lib- eral, we need not review them here since the issue may not arise on a new trial. Reversed and rAnanded.