City of Amarillo v. Copeland, 15125.

Citation218 F.2d 49
Decision Date02 February 1955
Docket NumberNo. 15125.,15125.
PartiesCITY OF AMARILLO, Appellant, v. Olive COPELAND, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Ben Monning, Jr., Monning & Monning, Amarillo, Tex., for appellant.

J. O. Fitzjarrald, Merchant & Fitzjarrald, Amarillo, Tex., for appellee.

Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and DAWKINS, District Judge.

HUTCHESON, Chief Judge.

Brought by the widow of Dewey Copeland, deceased, an employee in the Street Department of the City of Amarillo, the suit was for his wrongful death as a result of being run over, by an automobile driven by one Ollie Kincaid, while Copeland was about his regular work in repairing the streets and curbs.

The claim was that his death was due to and caused by defendant's negligence in failing in the particulars set out in the complaint to furnish him a safe place to work and particularly in not installing and maintaining suitable and sufficient barricades or barriers, and in failing to furnish and provide a flagman.

The defenses were: (1) that the driver of the automobile was in a state of intoxication which unfitted her to drive and that her acts of negligence were the sole proximate cause of plaintiff's injury; (2) that plaintiff was an experienced street laborer and assumed the known risks incident to the work, including the risk from which his death resulted, of being struck by a passing car; (3) unavoidable accident; (4) a denial that the defendant was negligent in the respects pleaded; (5) an affirmative plea that it had provided adequate and suitable barricades; and (6) that the injury and death were the result of the negligence of fellow servants of the deceased.

Instead of filing a third party complaint against Mrs. Ollie B. Kincaid, the driver of the car which caused the injury, and her husband, Cecil B. Kincaid, in which all questions arising out of the agreement of settlement1 made between Mrs. Copeland, plaintiff in this suit, the two Kincaids, and the insurance carrier could be presented and determined, defendant undertook to take advantage of the settlement, by motion to dismiss the suit, on the ground that the settlement with, and release of, the Kincaids was also a release of the city, and by motion to join the Kincaids and their insurance carrier as indispensable parties.

The evidence concluded, the cause was sent to the jury on a general charge which carefully submitted the issues raised by the evidence, and there was a verdict for plaintiff for $15,000, followed by a judgment for $7500,2 and defendant has appealed, assigning as error the failure and refusal of the court to direct a verdict for the defendant.

In support of this general claim of error, appellant advances three grounds, (1) that as matter of law the negligence of the drunken driver of the death car was the sole proximate cause of Copeland's death; (2) that Copeland was an experienced street employee, and that as matter of law he assumed the risk of being struck by a car while working in the streets; and (3) that the settlement appellee made with the driver of the car in and by which she agreed to indemnify her in the event the city should seek contribution or indemnity from her had the effect of releasing the city and preventing plaintiff from recovering from it, or if it did not have that effect it had the effect of offsetting the recovery by the same amount which, as a matter of law, under the undisputed facts, the city was entitled to recover as indemnity from the driver of the death car.

Pointing to the evidence showing the highly intoxicated state of the driver of the car, appellant insists that the City was not required to foresee or anticipate such an occurrence in violation of law, and, therefore, was under no duty to provide protection against such an injury, and could not be held accountable therefor.

Upon its second point, that plaintiff assumed the risk of being injured by working in the streets, defendant, citing many cases dealing with the doctrine of assumed risk, insists that by the nature of his occupation plaintiff's decedent was subjected to such a hazard as caused his death and under his contract of employment he assumed the risks thereof.

In support of its third point, appellant insists that the instrument of release and settlement between plaintiff and the Kincaids operated either as a release of the city as a joint tort-feasor or had the effect of preventing circuity of action ascribed to a similar instrument in Panhandle Gravel Co. v. Wilson, Tex.Civ. App., 248 S.W.2d 779.

Appellee as stoutly insists: that the verdict of the jury has foreclosed all arguments on the question of negligence and that the judgment was right and should be affirmed. So insisting, she urges upon us: that, under the evidence, the questions, whether plaintiff assumed the risk and whether the negligence of the driver was the sole proximate cause of the injury, were, at best for defendant, questions for the jury; that, upon evidence fully supporting its findings, the jury has found for plaintiff in effect that the city was negligent in not furnishing her decedent a safe place to work by furnishing proper barriers or other adequate warning; and that this was a proximate cause of the injury.

As to the release of the driver and the covenant to indemnify her in the event of a claim against her by the City of Amarillo, appellee insists that the instrument in question was not intended to be, and was not, a release of appellee's claim against the city but, on the contrary, it expressly provided that it would not...

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4 cases
  • Seaboard Properties, Inc. v. Bunchman
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 17, 1960
    ...assumed the risk. McGovern v. Philadelphia & Reading Ry. Co., 1914, 235 U.S. 389, 35 S.Ct. 127, 59 L.Ed. 283; City of Amarillo v. Copeland, 5 Cir., 1954, 218 F.2d 49; Byers v. Gunn, Fla.1955, 81 So.2d 723; Bartholf v. Baker, Fla.1954, 71 So.2d 480; Brady v. Kane, Fla.App. 1959, 111 So.2d Th......
  • Ft. Worth & Denver Railway Company v. Threadgill, 15494.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 17, 1956
    ...set aside unless they are so clearly erroneous that reasonable minds could not differ in reaching a different result. City of Amarillo v. Copeland, 5 Cir., 218 F. 2d 49. The railroad argues that its workmen being on the highway was only a condition and not a cause of the accident. This is a......
  • Gibbs v. Randolph, 16579.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 5, 1957
    ...Coleman, Tex.Civ.App., 135 S.W.2d 776; Gattegno v. The Parisian, Tex. Com.App. holding approved, 53 S.W.2d 1005, 1008; City of Amarillo v. Copeland, 5 Cir., 218 F.2d 49, and hence amounts received from one must be credited on a judgment against We need not determine whether this was an affi......
  • State Farm Mutual Automobile Ins. Co. v. Bourne
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 30, 1955
    ...involving the matter are so few in number that it cannot well be said that a federal rule has been established." Cf. City of Amarillo v. Copeland, 5 Cir., 218 F.2d 49; Gattegno v. The Parisian, Tex. Com.App., 53 S.W.2d 6 Cf. what is said in 28 Iowa Law Review, 1943, p. 515, at pages 524-525......

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