OpenJurist

275 F2d 244 Talley v. Mitchell

275 F.2d 244

W. O. TALLEY, Appellant,
v.
Mary Dee Cox MITCHELL, Appellee.

No. 13999.

United States Court of Appeals Sixth Circuit.

February 19, 1960.

Robert L. Taylor, Robert E. Joyner, Memphis, Tenn., for appellant.

James F. Schaeffer, Memphis, Tenn., for appellee.

Before McALLISTER, Chief Judge, POPE, Circuit Judge, and THORNTON, District Judge.

PER CURIAM.

1

On this appeal from a judgment for damages entered by the District Court on the verdict of the jury in favor of appellee, the oral arguments and briefs of attorneys and the record of the case have been carefully considered.

2

It appearing to the Court that the only evidence available to the appellee on the question of negligence were the physical facts growing out of a highway accident involving motor vehicles and skidmarks; these facts being presented to the jury through the testimony of an expert with his scientific conclusion as to which side of the road the collision occurred. The only issue of fact was whether the collision took place on the east or west side of the highway.

3

The appellant submits two questions on appeal:

4

I. "Is an answer to a hypothetical question admissible where it decides an ultimate question of fact?"

5

II. "Is an answer to a hypothetical question admissible where the hypothesis and answers are predicated upon speculation and assumption contrary to the evidence in the case?"

6

The appellant made no objection to the construction of the hypothetical question at the time it was put to the witness and cannot be heard to complain about it now. The consideration to be given to the testimony of the expert was submitted to the jury under proper and complete instructions by the Trial Judge, leaving the jury free to exercise its untrammeled judgment upon the worth and weight of this testimony. United States v. Johnson, 319 U.S. 503-519, 63 S.Ct. 1233, 87 L.Ed. 1546.

7

The assignments of error being without merit, the judgment is affirmed.