Peter Kiewit Sons Company v. Clayton, 8395

Decision Date05 October 1966
Docket Number8396.,No. 8395,8395
Citation366 F.2d 551
PartiesPETER KIEWIT SONS COMPANY, a Nebraska corporation, Morrison-Knudsen Company, Inc., an Idaho corporation, Mid-Valley Utility Constructors, Inc., a Texas corporation, individually and engaged in and doing business under the style and name of Arch Dam Constructors, a joint venture, and Boyd Peterson, Appellants, v. Jimmy D. CLAYTON, Appellee. PETER KIEWIT SONS COMPANY, a Nebraska corporation, Morrison-Knudsen Company, Inc., an Idaho corporation, Mid-Valley Utility Constructors, Inc., a Texas corporation, individually and engaged in and doing business under the style and name of Arch Dam Constructors, a joint venture, and Boyd Peterson, Appellants, v. Beatrice WATKINS, Jacqueline Jean Newman, Nancy Sue Timbrook, Ruby Diane Moody, and Mary Lou Watkins, minor, and Kathy Lynn Watkins, minor, by and through their guardian Ad Litem, Beatrice Watkins, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

F. Robert Bayle, Salt Lake City, Utah (Wallace R. Lauchnor, Salt Lake City, Utah, on the brief), for appellants.

Layne B. Forbes, Salt Lake City, Utah (Charles E. Bradford, Salt Lake City, Utah, on the brief), for appellees.

Before MURRAH, Chief Judge, and PHILLIPS and HILL, Circuit Judges.

HILL, Circuit Judge.

These two diversity cases, each with the requisite amount involved and arising from the same facts, were consolidated and tried together in the district court.

The corporate appellants. who were defendants below, as joint venturers, were engaged in the construction of Flaming Gorge Dam, located in Utah. Material for the work was being hauled some sixteen miles along the Bureau of Reclamation highway, which ran generally in a north-south direction. At a point approximately 2½ miles north of the dam site, which was located at the south end of the highway, South Boulevard provided access to the highway from the small community of Dutch John, located a short distance east from the highway. The highway has two lanes, is approximately 31 feet wide at this intersection, and is paved. South Boulevard is a paved four lane highway approximately 68½ feet wide at this intersection and terminates at that point, thus the two highways form a T intersection.

On July 2, 1962, around 7:30 a. m., a 1956 Buick automobile containing the driver and two passengers was travelling west on South Boulevard from Dutch John toward the paved highway. When it pulled out on the highway, it was struck by an unloaded tractor-trailer unit weighing about 20 tons, and being driven by appellant Boyd Peterson, an employee of the joint venturers and who was acting within his scope of employment at the time. The driver of the car and one of the passengers were killed, the other passenger, appellee Jimmy D. Clayton, survived but suffered serious injuries. At the time of the accident, the weather was clear, the surface of the highway was normal, and the vision of the drivers of both vehicles was unobstructed. Clayton brought suit in Number 8395, seeking damages for his personal injuries and the plaintiffs in Number 8396 brought suit, seeking damages for Jack Watkins' wrongful death. If the driver of the automobile was negligent, his negligence is not imputable to the passenger-appellees, therefore, the sole issue tried below was whether or not the truck driver was negligent.

There were two jury trials. In the first, the jury returned a verdict for the defendant-appellants, but, upon motion by the plaintiffs, the court granted a new trial. In the second trial, the jury rendered verdicts for the plaintiff-appellees in both actions, and it is from these verdicts appellants take this appeal.

Appellants first claim a reversible abuse of discretion by the trial court in granting the new trial after the first jury verdicts. The court granted the new trial on the basis that the verdict was inconsistent with the great preponderance of the evidence.

A motion for a new trial on the ground that the jury's verdict is against the weight of the evidence normally presents a fact question and is addressed to the sound discretion of the trial court; and that court's decision will not be reviewed in the absence of a showing of an abuse of discretion. Locke v. Atchison, Topeka and Santa Fe Railway Company, 10 Cir., 309 F.2d 811; Coffey v. United States, 10 Cir., 333 F.2d 945; United States v. Socony-Vacuum Oil Company, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129. Keeping this well established rule in mind, let us examine the record transcribed at the first trial to see if the trial court abused its discretion in granting a new trial.

The evidence revealed that the car in which appellee Clayton and the decedent were riding approached the "T" intersection travelling west; it stopped 1 at the stop sign which was located some 38 feet east of the east edge of the north-south highway; it slowly moved from the stop sign to the highway and then suddenly pulled out onto the highway and was evidently in the process of negotiating a left-hand turn to travel south when it was struck by appellant's tractor-trailer. The tractor-trailer was travelling north and hit the car in the right-hand lane. The appellant Peterson made no attempt to stop the truck. There were no skid marks. Evidently, his only effort in avoiding the collision was to move slightly over into the left-hand lane of traffic.

The law to be applied in the case is that of Utah. The trial court felt the case of Conklin v. Walsh, 113 Utah 276, 193 P.2d 437, was controlling. That case laid down the rule that a favored driver (which appellant Peterson was) has a duty to keep a proper lookout for drivers entering the highway from side roads and that if a favored driver...

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14 cases
  • Boeing Company v. Shipman
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 7 d1 Abril d1 1969
    ...Construction Company v. Erickson, 8 Cir., 1965, 352 F.2d 425; Wong v. Swier, 9 Cir., 1959, 267 F.2d 749, 752; Peter Kiewit Sons Company v. Clayton, 10 Cir., 1966, 366 F.2d 551, 554; Adams v. Powell, 10 Cir., 1965, 351 F.2d 273, See generally Note, Rule 50(b): Judgment Notwithstanding the Ve......
  • Martin v. City of Albuquerque
    • United States
    • U.S. District Court — District of New Mexico
    • 17 d2 Novembro d2 2015
    ...a genuine factual dispute exists unless no reasonable jury could find in favor of the non-moving party. See Peter Kiewit Sons Co. v. Clayton, 366 F.2d 551, 554 (10th Cir.1966). A reasonable jury could find that the level of force Padilla used was unreasonable.The Court has noted the importa......
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    • 3 d1 Julho d1 1967
    ...Insurance Co. v. Lukken, 10 Cir., 372 F.2d 8; Dunn v. St. Louis-San Francisco Railway Co., 10 Cir., 370 F. 2d 681; Peter Kiewit Sons Co. v. Clayton, 10 Cir., 366 F.2d 551; Locke v. Atchison, Topeka and Santa Fe Railway Co., 10 Cir., 309 F.2d 811; Darter v. Greiner, 10 Cir., 301 F.2d 772; Mi......
  • Harris v. Quinones
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 11 d3 Dezembro d3 1974
    ...Association, 406 F.2d 603 (10th Cir. 1969); Champion Home Builders v. Shumate, 388 F.2d 806 (10th Cir. 1967); Peter Kiewit Sons Company v. Clayton, 366 F.2d 551 (10th Cir. 1966); Locke v. Atchison, Topeka and Santa Fe Railway Company, 309 F.2d 811 (10th Cir. 1962). On review, we will not re......
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