Anderson v. Hudspeth Pine, Inc., 6734.

• Decision Date: 03 January 1962
• Docket Number: No. 6734.,6734.
• Citation: 299 F.2d 874
• Parties: Helen ANDERSON and William M. Anderson, Appellants, v. HUDSPETH PINE, INC., Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

299 F.2d 874 (1962)

Helen ANDERSON and William M. Anderson, Appellants, v. HUDSPETH PINE, INC., Appellee.

No. 6734.

United States Court of Appeals Tenth Circuit.

January 3, 1962.

COPYRIGHT MATERIAL OMITTED

Martin P. Miller, Denver, Colo. (Robert E. McLean, Denver, Colo., on the brief), for appellants.

Forrest C. O'Dell, Denver, Colo. (Wormwood, O'Dell & Wolvington, Denver, Colo., on the brief), for appellee.

Before PHILLIPS, PICKETT, and HILL, Circuit Judges.

PHILLIPS, Circuit Judge.

William M. Anderson and Helen Anderson, his wife, brought this action against Hudspeth Pine, Inc.¹ to recover damages for personal injuries suffered by them as the result of a collision between an automobile in which they were riding as passengers and being driven by Alex Dietrich and a 1950 GMC tractor and trailer owned by Pine. The Andersons, as grounds for their claims, alleged that the proximate cause of their injuries was the negligence of Pine and Earl E. Potter, its employee and the driver of the truck.

There were two trials of the case. The first resulted in verdicts in favor of the Andersons. The court set aside those verdicts and granted Pine's motion for a new trial on the ground that it had erred in failing to give an instruction requested by Pine. The second trial also resulted in verdicts in favor of the Andersons, but for amounts substantially less than those awarded by the verdicts at the first trial.

Judgments were entered on the verdicts returned at the second trial and the Andersons have appealed.

Counsel for the Andersons contend that the error in the instruction was harmless, because at the first trial, the court, as requested by them, should have directed the jury to return a verdict in their favor on the issue of liability and should have submitted for the determination of the jury only the amounts of damages.

In considering a motion for a directed verdict, the evidence, with all legitimate, reasonable, or proper inferences that may be drawn therefrom² is to be viewed and construed in the light most favorable to the party against whom the motion is directed.³ In passing on the motion, the court may not pass on the weight of the evidence, or determine where the preponderance of the evidence lies.⁴ With the exception of clearly incredible evidence, the court should not consider or pass on the credibility of witnesses and should accept as true the evidence in favor of the party against whom the motion is directed.⁵

And, if the evidence and inferences therefrom, viewed in the manner stated above, are of such a character that reasonable men in the exercise of fair and impartial judgments may reach different conclusions, the motion should be denied and the issues submitted to the jury.⁶

We have considered the evidence in accordance with the rules stated above and are of the opinion there was credible and substantial evidence from which the jury could have found the following facts:

Potter, the driver of the truck, was in charge thereof at the time of the accident. The trailer was loaded with mill equipment parts, mostly steel, which were being transported by Pine from Prineville, Oregon, to Pagosa Springs, Colorado. The trailer was a flat bed trailer and the top of the load was "low, not high." The combined weight of the load, tractor and trailer was approximately 70,000 pounds. The accident occurred about five miles west of Pagosa Springs on a country road paved with blacktop.

Potter had 20 years of experience as a truck driver. Before leaving Prineville, Potter checked his tires, turn signal lights, headlights, clearance lights, brake lights and reflector lights and found them in good order.

Potter stopped at Bayfield, Colorado, about 40 miles west of Pagosa Springs, and checked his headlights, clearance lights and tires and found them in good order. He also cleaned his reflector lights.

The truck was equipped with three reflector flares. They were strapped on the side, near the rear of the truck. There was also one flame flare, located under the driver's seat. The truck had front and rear turn signal lights. The right turn front signal light and the left turn rear signal light were not working at the time of the accident. There was also a flashlight on the truck, which produced red and white lights. The truck also had reflectors located on the mud flaps behind the rear wheels of the trailer. They were three inches in diameter and were located about two and one-half feet from the ground. The evidence does not disclose how far the reflector lights were located from the outside edges of the trailer. The truck was also equipped with brake lights and clearance lights. The evidence does not disclose the number or exact location of the clearance lights on the rear of the truck. The clearance lights were on the same circuit as the headlights. The brake lights were on a different circuit. The evidence does not show either the presence or absence of tail lights. Probably they were a part of the brake light assembly. The road was straight at the point of the accident, but was slightly upgrade to the east. At the point of the accident the road was 22 feet wide; the center was marked with a painted white line; the left side of the truck was seven feet from the center line; and about four feet of the truck was located on the paved portion and four feet on the shoulder of the highway. it was as far over on the shoulder as it was safe to drive the truck. The Dietrich car was about six feet wide and it could have remained on its side of the highway, viz., the right lane of the highway, and cleared the truck with about one foot to spare. It did veer to the left as it approached the truck, but not enough to avoid the collision.

The accident occurred about 8:00 p. m., October 25, 1957. The sky was overcast, the pavement was dry, vision was not obstructed.

After Potter left Bayfield and had reached a point about 12 miles from Pagosa Springs, his headlights flickered. The amp meter showed a discharge when the lights flickered, but showed a charge at all other times. The shoulder of the road was sufficiently wide at the point where the lights first flickered for Potter to pull off of the pavement. He did so and checked his lights, including his clearance lights. He was unable to find anything wrong with the lights. He turned the switch on and off several times and the lights "worked fine."

Potter then proceeded toward Pagosa Springs. The lights flickered again about a mile from where they first flickered. They then stopped flickering altogether, "seemed to be all right," and continued to function properly for seven miles and until Potter reached a point a short distance west of the point of the accident, when the lights flickered again and then went completely out. Potter proceeded after the lights first flickered, only after he had checked the lights and after they seemed to be functioning normally and under the belief they would continue so to do. It was later learned that the lights went out because of a defective switch. Potter had no switch difficulty on the trip, prior to the time the lights began to flicker.

At the point where the lights went out, there was a gradual upgrade and curve. Potter turned on his front left turn signal light. He believed it would be less hazardous to traffic if he moved the truck to the top of the hill and where there might be a wider shoulder. By stopping and flagging traffic with his flashlight, Potter was able to and did move the truck forward three or four times, in an effort to get to the top of the hill, where the hazard to traffic would be less, and to a point where he hoped the shoulder would be wide enough for him to park off the pavement. He was unable to find a wide shoulder and after moving forward about 100 yards beyond the brow of the hill, he parked at the point of the accident, with the tractor facing to the east. Immediately on parking the truck, he rushed around to the right side of the truck to get his flares. As he started to release the strap holding the flares, he saw the lights of the Dietrich car approaching from the west and the lights of another automobile, driven by one Henry, approaching from the east, the latter being closer to the point of the accident. Believing he would not have time to set out the flares and warn the approaching vehicles, he flagged the closer car, being the Henry car, first, and when it dimmed its lights in answer to his warning signal, he rushed to the west of the truck and undertook to warn the approaching Dietrich automobile with his flashlight. He walked approximately 20 feet back of the truck, continuing to signal and warn with his flashlight. There was obviously enough time for Dietrich to have stopped, if he had observed the warning. Dietrich dimmed his headlights, but apparently did not see the warning flashlight and continued to approach the truck. Potter continued to wave his flashlight, undertaking to warn Dietrich, until the Dietrich automobile was almost upon him, and then he jumped off the road to avoid being hit by it. About one minute elapsed from the time Potter rushed around to the side of his truck to get his flares and the time the accident occurred.

At the time of the accident, the reflector lights on the mudguards were dirty and were not functioning with full, normal effectiveness. In explaining the dirt on the reflectors, after he had cleaned them at Bayfield, Potter testified, "I hit a streak of road that had rained just ahead of me, approximately * * * 15 miles, and it was fresh rain. It had just rained ahead of me, and they was silt and the pavement was wet, and that's where I picked it up." From that statement the jury might have inferred that Potter passed beyond the rain area before reaching the point of the accident, but the distance between the end of the rain area and the point of the accident is not reflected by the record.

A small campsite was located about one mile west of the point of...