Simblest v. Maynard

• Decision Date: 12 May 1970
• Docket Number: Docket 34285.,No. 661,661
• Citation: 427 F.2d 1
• Parties: Samuel SIMBLEST, Plaintiff-Appellant, v. Joseph MAYNARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

427 F.2d 1 (1970)

Samuel SIMBLEST, Plaintiff-Appellant, v. Joseph MAYNARD, Defendant-Appellee.

No. 661, Docket 34285.

United States Court of Appeals, Second Circuit.

Argued April 1, 1970.

Decided May 12, 1970.

Robert Grussing, III, Brattleboro, Vt., for plaintiff-appellant.

Robert H. Erdmann, Burlington, Vt. (Wick, Dinse & Allen, Burlington, Vt., on the brief), for defendant-appellee.

Before KAUFMAN and FEINBERG, Circuit Judges, and TIMBERS, District Judge.^*

TIMBERS, District Judge:

We have before us another instance of Vermont justice — this time at the hands of a federal trial judge who, correctly applying the law, set aside a $17,125 plaintiff's verdict and entered judgment n. o. v. for defendant, Rule 50(b), Fed.R. Civ.P., in a diversity negligence action arising out of an intersection collision between a passenger vehicle driven by plaintiff and a fire engine driven by defendant in Burlington, Vermont, during the electric power blackout which left most of New England in darkness on the night of November 9, 1965. We affirm.

I.

Plaintiff, a citizen and resident of New Hampshire, was 66 years of age at the time of the accident. He was a distributor of reference books and had been in Burlington on business for three days prior to the accident. He was an experienced driver, having driven an average of some 54,000 miles per year since 1922. He was thoroughly familiar with the intersection in question. His eyesight was excellent and his hearing was very good.

Defendant, a citizen of Vermont, had resided in Burlington for 44 years. He had been a full time fireman with the Burlington Fire Department for 17 years. He was assigned to and regularly drove the 500 gallon pumper which he was driving at the time of the accident. He was thoroughly familiar with the intersection in question.

The accident occurred at the intersection of Main Street (U.S. Route 2), which runs generally east and west, and South Willard Street (U.S. Routes 2 and 7), which runs generally north and south. The neighorhood is partly business, partly residential. At approximately the center of the intersection there was an overhead electrical traffic control signal designed to exhibit the usual red and green lights.

At the time of the accident, approximately 5:27 P.M., it was dark, traffic was light and the weather was clear. Plaintiff was driving his 1964 Chrysler station wagon in a westerly direction on Main Street, approaching the intersection. Defendant was driving the fire engine, in response to a fire alarm, in a southerly direction on South Willard Street, also approaching the intersection.

Plaintiff testified that the traffic light was green in his favor as he approached and entered the intersection; but that when he had driven part way through the intersection the power failure extinguished all lights within his range of view, including the traffic light. All other witnesses, for both plaintiff and defendant, testified that the power failure occurred at least 10 to 15 minutes prior to the accident; and there was no evidence, except plaintiff's testimony, that the traffic light was operating at the time of the accident.

Plaintiff also testified that his speed was 12 to 15 miles per hour as he approached the intersection. He did not look to his right before he entered the intersection;¹ after looking to his left, to the front and to the rear (presumably through a rear view mirror), he looked to his right for the first time when he was one-half to three-quarters of the way through the intersection and then for the first time saw the fire engine within 12 feet of him. He testified that he did not hear the fire engine's siren or see the flashing lights or any other lights on the fire engine.

Plaintiff further testified that his view to the north (his right) as he entered the intersection was obstructed by various objects, including traffic signs, trees on Main Street and a Chamber of Commerce information booth on Main Street east of the intersection. All of the evidence, including the photographs of the intersection, demonstrates that, despite some obstruction of plaintiff's view to the north, he could have seen the approaching fire engine if he had looked between the obstructions and if he had looked to the north after he passed the information booth. One of plaintiff's own witnesses, Kathleen Burgess, testified that "maybe five to ten seconds previous to when he was struck he might have seen the fire truck," referring to the interval of time after plaintiff passed the information booth until the collision.

Defendant testified that, accompanied by Captain Fortin in the front seat, he drove the fire engine from the Mansfield Avenue Fire Station, seven and one-half blocks away from the scene of the accident, in the direction of the fire on Maple Street. While driving in a southerly direction on South Willard Street and approaching the intersection with Main Street, the following warning devices were in operation on the fire engine: the penetrator making a wailing sound; the usual fire siren; a flashing red light attached to the dome of the fire engine; two red lights on either side of the cab; and the usual headlights. Defendant saw plaintiff's car east of the information booth and next saw it as it entered the intersection. Defendant testified that he was traveling 20 to 25 miles per hour as he approached the intersection;² he slowed down, applied his brakes and turned the fire engine to his right, in a westerly direction, in an attempt to avoid the collision. He estimated that he was traveling 15 to 20 miles per hour at the time of impact. A police investigation found a 15 foot skid mark made by the fire engine but no skid marks made by plaintiff's car.

The fire engine struck plaintiff's car on the right side, in the area of the fender and front door. Plaintiff's head struck the post on the left side of his car, causing him to lose consciousness for about a minute. He claims that this injury aggravated a chronic pre-existing degenerative arthritic condition of the spine.

Other witnesses who virtually bracketed the intersection from different vantage points were called. Frank Valz, called by plaintiff, was looking out a window in a building on the northeast corner of the intersection; he saw the fire engine when it was a block north of the intersection; he heard its siren and saw its flashing red lights. Kathleen Burgess, another of plaintiff's witnesses (referred to above), was driving in a northerly direction on South Willard Street, just south of the intersection; seeing the fire engine when it was a block north of the intersection, she pulled over to the curb and stopped; she saw its flashing lights, but did not hear its siren. Holland Smith and Irene Longe, both called by defendant, were in the building at the southwest corner of the intersection; as the fire engine approached the intersection, they each heard its warning signals and saw its flashing lights in operation.

Defendant's motions for a directed verdict at the close of plaintiff's case and at the close of all the evidence having been denied and the jury having returned a plaintiff's verdict, defendant moved to set aside the verdict and the judgment entered thereon and for entry of judgment n. o. v. in accordance with his motion for a directed verdict. Chief Judge Leddy filed a written opinion granting defendant's motion.

On appeal plaintiff urges that the district court erred in granting defendant's motion for judgment n. o. v. or, in the alternative, in declining to charge the jury on the doctrine of last clear chance. We affirm both rulings of the district court.

II.

In determining whether the motion for judgment n. o. v. should have been granted, a threshold question is presented as to the correct standard to be applied. This standard has been expressed in various ways. Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached. See, e. g., Brady v. Southern Railway Company, 320 U.S. 476, 479-80 (1943); O'Connor v. Pennsylvania Railroad Company, 308 F.2d 911, 914-15 (2 Cir. 1962). See also 5 Moore's Federal Practice ¶ 50.02 1, at 2320-23 (2d ed. 1968); Wright, Law of Federal Courts § 95, at 425 (2d ed. 1970). On a motion for judgment n. o. v., the evidence must be viewed in the light most favorable to the party against whom the motion is made and he must be given the benefit of all reasonable inferences which may be drawn in his favor from that evidence. O'Connor v. Pennsylvania Railroad Company, supra, at 914-15; 5 Moore, supra, at 2325; Wright, supra, at 425.

We acknowledge that it has not been settled in a diversity action whether, in considering the evidence in the light most favorable to the party against whom the motion is made, the court may consider all the evidence or only the evidence favorable to such party and the uncontradicted, unimpeached evidence unfavorable to him. Under Vermont law, all the evidence may be considered. Kremer v. Fortin, 119 Vt. 1, 117 A.2d 245 (1955) (intersection collision between fire engine and passenger car). Plaintiff here urges that under the federal standard only evidence favorable to him should have been considered, citing Wilkerson v. McCarthy, 336 U.S. 53, 57 (1949). As plaintiff reads that case, the court below should not have considered anything else, not even the uncontradicted, unimpeached evidence unfavorable to him. However, we are committed to a contrary view in a diversity case. O'Connor v. Pennsylvania Railroad Company, supra.

The Supreme Court at least twice has declined to decide whether the state or federal standard as to the sufficiency of the evidence is controlling on such motions in diversity cases. Mercer v. Theriot, 377 U.S. 152, 156 (1964) (per curiam); Dick v. New York Life Insurance Company, 359...