Cook Paint & Varnish Co. v. Hickling

• Decision Date: 04 April 1935
• Docket Number: No. 10099.,10099.
• Parties: COOK PAINT & VARNISH CO. v. HICKLING.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F.2d 718 (1935)

COOK PAINT & VARNISH CO. v. HICKLING.

No. 10099.

Circuit Court of Appeals, Eighth Circuit.

April 4, 1935.

Herbert E. Story, of Omaha, Neb. (John C. Thomas, of Omaha, Neb., and Raymond A. Smith, of Council Bluffs, Iowa, on the brief), for appellant.

Amos E. Henely, of Omaha, Neb. (Thomas F. Henely, of Omaha, Neb., on the brief), for appellee.

Before WOODROUGH and FARIS, Circuit Judges.

FARIS, Circuit Judge.

Appellee, as plaintiff below, sued appellant for damages for personal injuries, accruing to her from an alleged negligent collision between a truck of appellant, and an automobile of appellee. The parties will be referred to as they stood in the trial court; namely, as plaintiff and defendant. Plaintiff had judgment pursuant to a jury's verdict for $5,500, for her hurts, for damages to her car, and for physicians' bills, and defendant appealed.

The facts disclosed on the trial were, that on a certain day in September, 1933, while defendant's employee was driving a model A 1930 Ford truck of defendant, on defendant's business, the truck suddenly stopped, and plaintiff, then driving her automobile some two or three car lengths in the rear, ran into the corner of the truck, in an effort to swerve, and sustained the injuries complained of. The record is dark upon the point, whether plaintiff was hurt in the collision with the truck, or was hurt by collisions with two other automobiles. But no point is made of this, and, under the famous Squib case, it is wholly irrelevant, since it is not disputed that the collision with the truck was the proximate cause of the injury to plaintiff. The simple history of the collision is, that in broad daylight, both the truck and the automobile were being driven along a public street in Council Bluffs, Iowa. Both vehicles were going some 25 miles an hour, which was not in excess of the local speed limit. While thus proceeding, the truck suddenly stopped, and plaintiff, then as said, two or three car lengths in the rear, attempted, but was unable to turn out, and the collision happened. No signal was given by the truck driver. He admits this, but says he had no time to give a signal. He turned his truck toward the curb, but the drive wheels of the truck had locked. At the moment of the collision the truck's front wheels were about five feet from the curb, while the rear of the truck was to a degree diagonally across the street.

The cause of the sudden stopping of the truck was that four of the six bolts, with which the two plates of the driving gear housing are held together, had fallen out, and the other two had become so worn and loosened as to permit the drive shaft gearing to become disengaged from the other cogwheels of the transmission; thus locking the brakes, by affecting the differential and disengaging the drive shaft, so that it could not transmit power to the rear wheels. Two of these bolts had disappeared; two others were found some two feet in the rear of the truck. The other two were in the plates, but very loose and badly worn.

Plaintiff pleaded two alleged acts of negligence: (a) That the driver of the truck gave no signal at or before the truck stopped; and (b) a negligent failure to inspect the transmission housing and discover and repair the defective condition thereof. Defendant relied in defense on contributory negligence and a general denial. The alleged contributory negligence of plaintiff was bottomed on excessive speed, for that she was driving at a speed greater than was reasonable and proper, and at a speed so great as not to permit her "to bring" her car "to a stop within the assured clear distance ahead." Code Iowa 1931, § 5029.

There was no evidence of excessive speed, that is, of a speed which exceeded the statutory limit of 25 miles an hour for the time and place of the collision. Both the truck driver and the plaintiff fixed the speed of both the truck and the automobile at 25 miles per hour, and no witness disputed the fact. In fact, all inferences which arise from the evidence induce the conclusion that if the truck was not going over 25 miles, then the automobile of plaintiff was not exceeding the speed limit, as fixed by statute.

The other alleged act of contributory negligence is pleaded very generally by a charge that plaintiff was operating her automobile in a manner which violated the provisions of sections 5029 and 5030 of the Code of Iowa of 1931. Eking out as best we can what particular part of section 5029, supra, was relied on by defendant, we conclude that defendant intended to rely on the defense that the speed of plaintiff's automobile was such that she could not stop her car in the space of two or three car lengths. This view defendant's brief corroborates. In other words, she had crowded the truck so closely that, her rate of speed considered, she was unable to stop the car in time to avoid a collision with the truck. Stated yet another way, that plaintiff's crowding of the truck put her so near thereto, that, when the truck suddenly stopped, she was not able to "stop within the assured clear distance ahead." Section 5029, Code of Iowa, 1931.

At the close of the evidence on the part of plaintiff, the defendant prayed the court to instruct the jury to find for the defendant. This request the court denied. Defendant then offered its evidence, and, again, at the close of all the evidence in the case, demurred to the sufficiency thereof, and requested a peremptory instruction, which the court likewise denied. In this situation, plaintiff insists that this court may not inquire into the sufficiency of the evidence to warrant recovery. Cases are cited by plaintiff to sustain this contention. But unfortunately these cases are not applicable to the facts before us. It is, of course, settled that ordinarily an appellate court will not consider an attack on the sufficiency of the evidence in a case where defendant offers evidence after his motion for a directed verdict has been overruled; unless, after all of the evidence has been heard, the defendant properly renews his objection to the sufficiency of the evidence, and requests the trial court to charge the jury to find for defendant. Unless defendant shall renew his request after putting in evidence on his behalf, he is deemed to have waived the point of lack of sufficient evidence. He may, however, even after such tentative waiver, keep the objection alive, by requesting the court at the close of all of the evidence to charge the jury to find for the defendant, or by such other action as is tantamount thereto. In other words, a defendant who prays for a directed verdict at the close of the plaintiff's case, then offers evidence, in defense, and at the close of all the evidence again prays for a directed verdict, loses no right. He merely takes the risk that his evidence may strengthen the case of the plaintiff. The true rule is laid down in the case of United States v. Alberty (C. C. A.) 63 F.(2d) 965, which upon the point accords with what is here said. So being permitted to examine whether plaintiff's evidence was, on the point of showing negligence on defendant's part, sufficient to go to the jury, we are of opinion that it was.

Laying aside presently the contention of defendant that the collision was caused by the contributory negligence of plaintiff, we think each alleged act of negligence on defendant's part was shown, to an extent which warranted taking the jury's finding thereon. The truck driver gave no signal that he was going to stop. He admits this, and says he intended to turn into the curb and stop before the truck quit going, but as an excuse he says he had no time to make a signal before the following automobile hit his truck. If he had made up his mind to stop, he was bound to signal the fact. If he had time to slow down, as he admits he did, he had time to signal. If the mere fact that his sudden and involuntary stopping stood alone, it would doubtless afford a legal excuse for failing to give a signal. But it does not stand alone. The truck had been making rather loud and unusual noises, and had begun to slow down for some seconds...