Sapp v. Gardner, 10464.

• Decision Date: 19 June 1944
• Docket Number: No. 10464.,10464.
• Citation: 143 F.2d 423
• Parties: SAPP v. GARDNER.
• Court: U.S. Court of Appeals — Ninth Circuit

143 F.2d 423 (1944)

SAPP v. GARDNER.

No. 10464.

Circuit Court of Appeals, Ninth Circuit.

June 19, 1944.

Maguire, Shields, Morrison & Biggs, Hugh L. Biggs, and R. K. Powell, all of Portland, Or., for appellant.

Hampson, Koerner, Young & Swett and James C. Dezendorf, all of Portland, Or., and M. R. Tan Creti, of Carroll, Iowa, for appellee.

Before STEPHENS and HEALY, Circuit Judges, and BOWEN, District Judge.

BOWEN, District Judge.

On August 2, 1941, about 6:30 P.M., in broad daylight and in clear dry weather, while appellant was driving his Chevrolet gravel truck east on Eighteenth Street and appellee was driving his Ford V-8 coach south on North West Street, at the south city limits of Carroll, Iowa, a collision between those vehicles occurred at the intersection of those streets.

Appellee sustained severe personal injuries as well as damage to his automobile and brought this action to recover for his damages in the court below, basing jurisdiction on diversity of citizenship which is admitted. The trial court sitting without a jury found for appellee and awarded him judgment for $6427.50 from which appellant appeals.

The sole question presented is whether appellee, as asserted by appellant and denied by appellee, was guilty of contributory negligence as a matter of law. If he was, appellee cannot recover, because under the Iowa law which governs that question contributory negligence of the injured party whether proximate or not bars his recovery. Hogan v. Nesbit, 216 Iowa 75, 246 N.W. 270.

At the trial, both appellant and appellee appeared and testified in person, and the depositions of other witnesses were introduced. The testimony developed that at their intersection North West Street runs in a northerly and southerly direction and Eighteenth Street runs in an easterly and westerly direction; that on Eighteenth Street toward the intersection there is a down grade of 10 or 15 per cent; that North West Street is on a very slight grade as it approaches the intersection; that there is an embankment at the northwest corner of the intersection; and that appellant was on appellee's right as they approached the intersection.

It was testified on behalf of appellee that he was driving at about 25 miles per hour and looked to his right as he approached and again as he entered the intersection, and seeing no crossing traffic he continued into the intersection where, after appellee's car crossed the center line of Eighteenth Street, appellant's truck collided with appellee's car; that appellee's view to his right along Eighteenth Street was obstructed by the top of his car, the top of his right car window and the steep grade of Eighteenth Street; that appellee did not see appellant's truck approach from appellee's right until the truck loomed upon him. At the trial appellee as a result of his recent view of the scene of the accident corrected his previous testimony by deposition as to how far he could see up the steep grade and said that from a point about 40 feet back north from the intersection he could see 60 to 75 feet to his right up that grade, and probably 100 feet or a little more after arriving in or nearer the intersection; and in effect that because of the top of his car and the top of the right window of his car and the steep grade of the street he could not see appellant's fast moving truck in time to avoid the accident. Appellee's witness Sylvester by deposition testified that appellant was going 50 miles per hour and appellee 25 miles per hour at the instant before the...