National Mut. Casualty Co. v. Eisenhower, 2182.
| Decision Date | 30 December 1940 |
| Docket Number | No. 2182.,2182. |
| Citation | 116 F.2d 891 |
| Parties | NATIONAL MUT. CASUALTY CO. OF TULSA, OKL., v. EISENHOWER. |
| Court | U.S. Court of Appeals — Tenth Circuit |
E. S. Hampton, of Salina, Kan. (C. W. Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger, and R. E. Haggart, all of Salina, Kan., on the brief), for appellant.
Matt Guilfoyle, of Abilene, Kan. (Thornton D. Scott, of Abilene, Kan., on the brief), for appellee.
Before BRATTON and MURRAH, Circuit Judges, and KENNAMER, District Judge.
This action was instituted by a mother, for the recovery of damages for the wrongful death of her 18-year old son. The automobile in which the deceased was riding, collided with a fuel transport truck as the truck had crossed a narrow bridge, and immediately before deceased's automobile had approached the bridge.
Robert Eisenhower, while driving an automobile, accompanied by a younger brother, occupying the front seat with him, and his two sisters and a cousin in the back seat, collided with the truck traveling in an opposite direction, and a portion of the truck was torn loose and driven through the body of Robert Eisenhower, which resulted in his death within a few hours. The truck was driven by an employee of H. A. Friesen, doing business as Jansen Oil Company, Jansen, Nebraska, and was insured, as required by the Kansas Statutes, under a policy issued by the defendant insurance company. The case was tried to the court without a jury. A motion for directed verdict, interposed by the defendant insurance company upon the conclusion of plaintiff's case in chief, was overruled, and thereafter witnesses were presented by the defendant. At the conclusion of the testimony, defendant insurance company moved for judgment, which was overruled, and thereafter filed its motion to set aside findings of fact and conclusions of law, and a motion for new trial, both of which were denied. Judgment was entered for the plaintiff for the sum of $4,277.25, and the defendant insurance company has brought the case here for review.
It is contended that the court erred in overruling the defendant's motion for directed verdict and judgment, for the reason that the decedent was guilty of contributory negligence, if not negligence, which was the proximate cause of the collision. The question is whether there was substantial evidence tending to show that the driver of the truck involved in the collision was guilty of primary negligence, which proximately caused the injuries from which the deceased died, and whether there was substantial evidence showing that the deceased, either contributed to or proximately caused his injury and resulting death, by his own negligence.
The evidence will be briefly reviewed. The deceased was an 18-year old son of a widowed mother, having graduated from high school the spring preceding his death. He was driving the family car, a 1929 model, south on Kansas state highway number 15, and at a point some 2 miles north of Hillsboro, Kansas, he approached a bridge about 34 feet long and 14 feet wide. Railings were on the two sides of the bridge, and the bridge was over to the west side of the road, so that anyone traveling in the direction in which the deceased was proceeding, could continue straight forward, while a vehicle approaching the bridge from the north, is required to incline to the left in order to cross the bridge. The truck in question was approaching from the north, and the deceased retarded the speed at which he was traveling, and the truck also appeared to the witnesses to slow down. Both apparently came on, the truck traveling at a rate of speed of from 35 to 40 miles per hour, while the deceased was attempting to stop his car, and at the time of the impact his car was traveling about 5 miles per hour. The speed of the truck was not retarded until the moment of the impact, or shortly thereafter. The deceased's automobile was as far to the right as it was possible to drive the same, and the truck was driven near the railing of the bridge. Regulation warnings of the State Highway Commission were stationed 300 feet on each side of the bridge, warning travelers of the narrow bridge. The truck stopped 54 feet north of the point of collision. Several witnesses testified with respect to the brakes upon deceased's automobile, three testifying that the brakes were adequate, and the defendant submitting two garage mechanics who examined brake linings removed from deceased's automobile after the collision, as well as admissions of deceased's sister, that the car was without brakes.
There is little question but that the evidence showed substantial negligence proximately causing the injuries from which the deceased died. Appellant refers to the case as one involving two vehicles approaching a narrow bridge from opposite directions, each trying to beat the other across it, and stated that both drivers were negligent; contending that recovery should have been denied because of contributory negligence. Aside from the admissions of the deceased's sister, in a statement given an insurance adjuster, that the car was without adequate brakes, there was no substantial evidence of negligence of the deceased presented prior to the motion of the defendant for a directed verdict and for judgment. Plaintiff's evidence showed that the brakes had been O.K.'d, which is explained as an approval upon test by the Highway Patrol, and that the brakes had been adequate and satisfactory a short time prior to the accident.
Contributory negligence may be a mixed question of law and fact; the entire case was submitted to the trial court. We cannot say that he committed error in denying the motion for a directed verdict and judgment. The court should direct a verdict where the evidence is without dispute, or if conflicting, is of such a conclusive nature as to permit no serious dispute. See, A. B. Small Company v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Rouse v. Burnham, 10 Cir., 51 F.2d 709; Murray Co. v. Harrill, 10 Cir., 51 F.2d 883; Central Surety & Insurance Corporation v. Murphy, 10 Cir., 103 F.2d 117. Contradictions and conflicts of evidence are for the trier of the facts, whether it be court or jury, and where the evidence and the inferences fairly deducible from it are such that reasonable minds may honestly draw different conclusions from them, it has been held by this court that the question is not one of law, but of fact, to be determined by the trier of the facts. See, Central Surety & Ins. Corporation v. Murphy, supra, and cases therein cited.
In light of the above, we shall consider the alleged error of the trial court in denying and refusing requested findings, and in adopting findings upon which judgment was entered. A finding was requested to the effect that the brakes on the deceased's car were worn and in bad condition, and that the deceased had knowledge of the condition of the brakes, as well as that the deceased had made other trips over the same road, and had driven the car quite a bit, and further, that the truck got to the bridge and crossed it first.
The evidence was in conflict as to the condition of the brakes upon the deceased's car. Reasonable minds could honestly reach different conclusions upon the question. It cannot be said that the...
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