Appeal from Circuit Court, Knox County.
Charles Pickard against the Appalachian Stave Company
ACTION: Reversed on original and affirmed on cross-appeal, with directions to award new trial

Court of Appeals of Kentucky.
Oct. 20, 1936.
Petition for Rehearing Dismissed Jan. 14, 1937.

In discussing this incompetent evidence, we said: "The plaintiff introduced a number of witnesses who testified that they went to the scene of the accident on the following day and saw the imprint made by an automobile tire in the dirt at the point where the plaintiff claimed he drove his car when the accident occurred. There was evidence that a number of automobiles had passed back and forth along the road in the meantime, and there was also evidence that at least one or two automobiles had been driven along the extreme right side of the road at this point traveling from the direction of Barbourville. There was no evidence to show that the conditions had remained the same from the time of the accident until these witnesses made their observations on the following day, or that there were any distinguishing marks or circumstances by which the track seen by them could be identified as one having been made by Pickard's car. This evidence under the circumstances was incompetent and should have been excluded."

Johnnie Green testified in behalf of Pickard on both trials. To circumvent our ruling as to the incompetency of the evidence discussed in our former opinion, Pickard proved by Johnnie Green that on the night of the accident or the next day, he pointed out to Demps King, Bill Lundy, Parker Hemphill, Johnnie B. Adams, Walter Mays, Steve Newman, John Creasy, Herman Green, Charlie Swafford, Henry Pickard, and Riley Pickard "where the car was located" at the time of the accident; "water had run out of the radiator;" and "the tracks leading down to the place along the bank to where the car had stopped"--the point of the accident; then proved by these witnesses "that they went to the scene of the accident that night or the next day" and "they saw the wet place pointed out as the place where the water had run out of the radiator and observed the tracks leading down to the place along the top of the bank to where the car had apparently stopped, and as pointed out by Green as the place where it stopped." "They all described conditions identical with the testimony of the witness, Green." Green was recalled and further testified "that the conditions were the same then as they were when the accident happened that night."

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