248 F.2d 905 (8th Cir. 1957), 15813, North Am. Van Lines, Inc. v. Brown

Docket Nº:15813.
Citation:248 F.2d 905
Party Name:NORTH AMERICAN VAN LINES, Inc., Appellant, v. Patricia S. BROWN and Gerald Brown, Appellees.
Case Date:November 07, 1957
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 905

248 F.2d 905 (8th Cir. 1957)

NORTH AMERICAN VAN LINES, Inc., Appellant,

v.

Patricia S. BROWN and Gerald Brown, Appellees.

No. 15813.

United States Court of Appeals, Eighth Circuit.

November 7, 1957

Page 906

Don M. Jackson, Kansas City, Mo. (Rogers, Field, Gentry & Jackson, Kansas City, Mo., were on the brief), for appellant.

Don G. Stubbs, Kansas City, Mo. (Tom J. Stubbs and Stubbs, McKenzie, Williams & Merrick, Kansas City, Mo., were on the brief), for appellees.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

Gerald Brown and Patricia S. Brown brought this action against North American Van Lines, Inc., and Herbert F. Butterfield for personal injuries sustained by Patricia S. Brown and for loss of service sustained by her husband, Gerald Brown, as the result of an automobile accident which occurred on March 3, 1955, on United States Highway No. 40, near the LaFayette County line in Jackson County, Missouri. Prior to the trial of the cause, a separate settlement was made with Butterfield and the case proceeded to trial against North American Van Lines, Inc., only. Federal jurisdiction was established by reason of diversity of citizenship.

The action was tried to the court, without a jury, and the court entered findings of fact and conclusions of law in favor of the plaintiffs and awarded judgment for Patricia S. Brown in the amount of $25, 000.00 and Gerald Brown in the amount of $5, 000.00. Defendant was given $5, 000.00 credit on each of the

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judgments, a total of $10, 000.00, the amount received by plaintiffs in compromise promise of their cause of action against the former co-defendant, Butterfield.

The findings of fact, conclusions of law and judgment were as follows:

'Findings of Fact.'

'(1) On March 3, 1955, plaintiffs were husband and wife and on the date of the commencement of this action were citizens and residents of the State of Maryland. Defendant was and is a citizen and resident of the State of Indiana. The amount in controversy in this action exceeds the sum of $3, 000.00, exclusive of interest and costs.

'(2) On said 3rd day of March, 1955, defendant North American Van Lines, Inc., was operating its van type tractor and trailer truck in an easterly direction on U.S. Highway No. 40 in Jackson County, Missouri, by and through its duly authorized agent and servant. Said highway extended generally in an easterly and westerly direction.

'(3) When said tractor-trailer truck reached a point on said high-way approximately four-tenths of one mile west of the LaFayette County line in Jackson County, Missouri, at about 3:30 o'clock P.M. of said date, it was brought to a stop with four and one-half feet of said trailer upon the traveled portion of said highway and immediately east of the crest of a hill and on a curve of said highway to the south and on a downgrade to the east; that such downgrade continued to the east for at least one-half mile.

'(4) The fan belt of said tractor had broken approximately one-fourth mile west of the place said tractor-trailer truck was so stopped.

'(5) After stopping said tractor-trailer as aforesaid, defendant's said agent and servant placed one reflector ninety (90) feet to the west of the rear of said trailer and near the center line of said highway; a second reflector thirty (30) feet to the rear of said trailer and near the center line of said highway; and a third reflector even with the rear of said trailer and near the center line of said highway. This occurred during the daylight hours and at a time when lights were not required.

'(6) The paved portion of Highway No. 40 was twenty-four feet wide and the shoulders bordering said highway were approximately twelve feet in width, a portion of said shoulders being surfaced with gravel. Defendant's said tractor-trailer truck was seven to eight feet in width. Immediately following the casualty hereinafter referred to, two other large trucks drove onto the shoulder on the south side of said Highway No. 40, and completely off of the traveled portion of said highway, both to the east and west of the place on said highway where defendant's tractor-trailer was stopped.

'(7) At said time and place, one Herbert Butterfield, formerly a codefendant in this action, was operating a motor vehicle in an easterly direction on said Highway No. 40 and approached said stopped tractor-trailer truck from the rear, at the crest of a hill and on a curve. By reason of the position of said trailer on the traveled portion of said highway and by reason of the position of said reflectors near the center line of said highway, said Butterfield drove his said motor vehicle into the north one-half of said highway to pass said trailer and reflectors, to avoid colliding with same.

'(8) At said time and place, plaintiff Patricia S. Brown was operating a motor vehicle, owned by plaintiff Gerald Brown, in a westerly direction on said Highway No. 40, on a curve and immediately approaching the crest of said hill where said tractor-trailer truck was parked; said plaintiff was then driving upon the north one-half of said

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highway at a speed of approximately forty to forty-five miles per hour. The automobile driven by Patricia S. Brown and the Butterfield automobile reached a position opposite defendant's truck at about the same time. Butterfield's automobile was then traveling astride the center line of Highway No. 40 and occupying a portion of the north one-half of said highway. Plaintiff Patricia S. Brown under such circumstances was confronted with a sudden emergency, not of her own making, and under the stimulus of such emergency and in order to avoid a collision with the Butterfield automobile Patricia S. Brown drove the automobile so operated by her partially onto the shoulder bordering the north side of said highway where the same went out of control and upset and said Patricia S. Brown was thrown therefrom and was injured.

'(9) Plaintiff Patricia S. Brown, when imminently confronted with the situation of emergency above found, acted and responded thereto as a very careful and prudent person in the exercise of the highest degree of care for her own safety would have reacted under the same or similar circumstances.

'(10) As a direct result of said upset, plaintiff Patricia S. Brown sustained fractures of the bodies of the first and second cervical vertebrae, fractures of the neural arch of the first and second cervical vertebrae, and fractures of the bodies of the third, fourth and fifth dorsal vertebrae and injury to the first cranial nerve. She was confined to a hospital for ten (10) days and thereafter was obliged to wear a Minerva type cast extending from over her head to below her hips for approximately four (4) months. Thereafter she was obliged to wear a neck and back brace for an additional period of time. She was under the care and treatment of orthopedic specialists until October, 1955. She has been and now is obliged to take medicine for the relief of pain. Her injuries have resulted in a progressive hump in her back between her shoulders. sHe has had episodic headaches and pain in her cervical region and in her dorsal area ever since such injuries were sustained, except when under the influence of narcotics. In the future she will be required to undergo a surgical stabilization of her dorsal...

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