Andruss v. Nieto, 9386.

Decision Date25 July 1940
Docket NumberNo. 9386.,9386.
Citation112 F.2d 250
PartiesANDRUSS v. NIETO.
CourtU.S. Court of Appeals — Ninth Circuit

Harry Gottesfeld, Robert L. Mann, and Walter M. Lehman, all of San Francisco, Cal., for appellant.

Hubbard & Hubbard, of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Appellee brought an action against appellant in the District Court of the United States for the Northern District of California, Southern Division, to recover damages for personal injuries. A jury having been waived, the trial proceeded before the court without a jury. From a judgment entered in favor of appellee, appellant appeals.

The facts in the case are substantially as follows:

Respondent, Philip Nieto, was injured on November 3, 1934, when struck by an automobile being driven by appellant, N. F. Andruss. The accident occurred between 5:15 and 5:30 p. m. Appellant was driving easterly on the Mountain View Highway in the County of Santa Clara in the State of California. This highway runs in a general easterly and westerly direction. Near the place where the accident occurred the highway turns into, and is merged in, the Alviso Highway. The plaintiff was standing several feet west of where these roads intersect, about six feet north from the northerly edge of the paved portion of the Mountain View Highway, and beside a concrete curbing or abutment along the northerly edge of a culvert located at said place. A railroad crosses the Mountain View Highway at an obtuse angle about forty-five feet west of the culvert. The plaintiff stood east of the railroad track, between it and the Alviso Highway, facing north toward Alviso with his back to the Mountain View road, from which direction the appellant was driving. About four-tenths of a mile west of the railroad track the road curves, and east of the railroad track, at the place where the Mountain View road turns into the Alviso Highway, there is a considerable curve. Just before the accident some rain had fallen, and the highway near the intersection where the accident occurred was in a slippery condition. Appellant testified that the automobile he was driving was in excellent mechanical condition, but that somewhere between forty-five feet and sixty feet west of the culvert the car would not respond to the steering wheel but skidded over on the wrong side of the road and off the paved portion of the highway and struck the plaintiff. A witness for appellee testified that he had observed the skid marks shortly after the accident, which were more than ninety feet in length.

The automobile approached appellee from the rear without any warning, and when he heard the noise from the brakes behind him the car was so close that he was unable to escape injury. In striking him the automobile ran completely off the highway. The District Court made this finding: "* * * Said defendant then and there so negligently and carelessly drove and operated said automobile as to cause it to run off of the paved portion of said highway and to collide with the person of plaintiff. In said collision both of plaintiff's feet were caught between the front bumper of said automobile and the curbing of said culvert, which curbing projected approximately one foot above the surface of the ground. Both of plaintiff's feet were crushed and mangled to such an extent in said collision that it was necessary for both of said feet to be amputated above the ankles. At the time of said accident, defendant N. F. Andruss was driving said automobile at a dangerous and excessive rate of speed. Said defendant drove said automobile off of said highway to the north thereof and into collision with plaintiff, without giving plaintiff any warning whatever. Plaintiff at all times herein concerned exercised reasonable care for his own safety. * * * "

Appellant excepted to these findings and proposed modifications to the effect that appellant was operating his automobile in a careful, prudent manner, at a reasonable rate of speed, and that he was without fault in causing the accident. The court refused these requests. Appellant also assigned error for the court's failure to grant a nonsuit, and urges here that the evidence is insufficient to sustain the findings of fact and conclusions of law.

True, the appellant did testify that for the few seconds immediately preceding his running off the highway and crushing appellee against...

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3 cases
  • United States v. Marshall
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 22 Marzo 1956
    ...trier of fact. Ford v. Connell, 1949, 69 Idaho 183, 204 P.2d 1019; Clark v. Chrishop, 1952, 72 Idaho 340, 241 P.2d 171; Andruss v. Nieto, 9 Cir., 1940, 112 F.2d 250; United States v. De Back, 9 Cir., 1941, 118 F.2d 208; Corrigan v. San Marcos Hotel Co., 9 Cir., 1950, 182 F.2d 719. It is onl......
  • Dallas County v. Commercial Union Assurance Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 17 Enero 1961
    ...§ 2492 (3rd ed. 1940)), and the doctrine of res ipsa loquitur (Hotel Dempsey Co. v. Teel, 5 Cir., 1942, 128 F.2d 673; Andruss v. Nieto, 9 Cir., 1940, 112 F.2d 250). The analogy is slight. These quasi-evidentiary rules express positive state policy that so far affects rights, using the "outc......
  • Alexander v. Corey
    • United States
    • U.S. District Court — District of Alaska
    • 14 Agosto 1951
    ...that he has offered no explanation such as would relieve him from the application of the doctrine of res ipsa loquitur. Cf. Andruss v. Nieto, 9 Cir., 112 F.2d 250; Ralston v. Dossey, 289 Ky. 40, 157 S.W.2d Springs v. Doll, 197 N.C. 240, 148 S.E. 251 and Liggett & Myers Tobacco Co. v. DeParc......

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