Swift & Co. v. Young

• Decision Date: 06 November 1939
• Docket Number: No. 4528.,4528.
• Parties: SWIFT & CO. v. YOUNG.
• Court: U.S. Court of Appeals — Fourth Circuit

107 F.2d 170 (1939)

SWIFT & CO. v. YOUNG.

No. 4528.

Circuit Court of Appeals, Fourth Circuit.

November 6, 1939.

L. R. Varser, of Lumberton, N. C. (R. A. McIntyre and O. L. Henry, both of Lumberton, N. C., on the brief), for appellant.

Neill McK. Salmon, of Lillington, N. C. (J. R. Young, of Dunn, N. C., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment for plaintiff in an automobile collision case. The points raised relate to the submission of the doctrine of last clear chance in the charge of the court to the jury, and to alleged errors in the admission and rejection of testimony. The only point raised by appellant which merits discussion is that which relates to charging the jury on the doctrine of last clear chance.

The evidence shows that plaintiff was driving her automobile on a trip from Dunn, N. C. to Wilmington, N. C., when she was in collision with a truck of defendant coming from the opposite direction about thirty-five miles from Wilmington. There was evidence for plaintiff to the effect that she was driving in a prudent manner on the proper side of the highway when she observed the truck of defendant approaching her at an excessive rate of speed; that she brought her car to a complete stop before reaching a bridge which she was approaching, because of the danger created by the approaching truck; and that the truck came across the bridge in the center of the highway at an excessive rate of speed and crashed into her automobile and seriously injured her. The driver of the truck, on the other hand, testified that he was driving on his own side of the road at a speed of only 30 or 35 miles an hour; that plaintiff was approaching him at an excessive rate of speed and her car was skidding as she approached the bridge; and that the collision resulted from her car skidding across the road in front of his truck. On cross examination, he stated that he could have stopped his truck within thirty feet; that he saw plaintiff's car skid crosswise of the road fifty steps ahead of him and that he did not stop because he thought he could "get through". After charging the jury on the ordinary aspects of negligence and contributory negligence presented by the evidence, the court presented the last clear chance doctrine as follows: "I charge you that if the jury should be of the opinion from the evidence that the plaintiff was coming along the highway at 75 miles an hour (or 60 miles or 65) and that by reason of such excessive speed she lost temporary control of her car and it skidded across the highway, as the defendant contends it did, even then the plaintiff can recover if the defendant saw the situation in ample time to have avoided it if he had sought to do so. In other words, just because a car is standing still across the highway there is no...