Atlantic Greyhound Corporation v. McDonald, 4891.

• Decision Date: 09 February 1942
• Docket Number: No. 4891.,4891.
• Citation: 125 F.2d 849
• Parties: ATLANTIC GREYHOUND CORPORATION v. McDONALD.
• Court: U.S. Court of Appeals — Fourth Circuit

125 F.2d 849 (1942)

ATLANTIC GREYHOUND CORPORATION v. McDONALD.

No. 4891.

Circuit Court of Appeals, Fourth Circuit.

February 9, 1942.

R. P. Reade, of Durham, N. C., and Clyde A. Douglass, of Raleigh, N. C. (William B. Umstead and F. L. Fuller, Jr., both of Durham, N. C., on the brief), for appellant.

J. Elmer Long and H. G. Hedrick, both of Durham, N. C. (C. W. Hall, of Durham, N. C., and W. Henry Cook, of South Hill, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment against a bus company and in favor of a passenger who sues for damages for injuries sustained as the result of a collision between the bus on which he was riding and an automobile. There was a trial before a jury, and from judgment on an adverse verdict the bus company has appealed. Only two questions are raised by the appeal. The first of these relates to the admissibility of certain testimony of the driver of the automobile as to his habits in driving and may be dismissed with the observation that, whether admissible or not, this testimony manifestly could not have affected the verdict. The other relates to the action of the judge in overruling the bus company's motion for judgment as of non suit at the conclusion of the evidence.

The motion for judgment as of non suit, which was made in accordance with the practice prevailing under the North Carolina Code of Civil Procedure, was the equivalent of a motion for a directed verdict at the conclusion of the evidence under the federal practice, and we shall treat it as such. See Rules of Civil Procedure 41(b) and 50(a), 28 U. S.C.A. following section 723c. Moore's Federal Practice, vol. 3, pp. 3044, 3045; Federal Deposit Ins. Corp. v. Mason, 3 Cir. 115 F.2d 548, 551. A sufficient ground for denying the motion is found in the fact that it fails to state "the specific grounds therefor" as required by rule 50 (a). Virginia-Carolina Tie & Wood Co. v. Dunbar, 4 Cir. 106 F.2d 383, 385. A careful consideration of the record, however, convinces us that the motion was properly denied, even if the grounds set forth in the brief of appellant be considered as having been properly assigned as grounds of the motion.

At the time of the collision the bus was proceeding north on U. S. Highway No. 1 about three miles north of South Hill, Virginia. The paved portion of the highway was only eighteen feet wide with a solid five-foot earth shoulder on the east. The road was being widened at the point of collision and there was no usable shoulder on the west side of the concrete, where there had been excavation of a strip twelve feet wide for the purpose of widening the pavement. This strip was soft and slick and at the time of the collision was covered with a thin layer of ice not capable of supporting a motor vehicle. The bus was eight feet wide; and the evidence of plaintiff is to the effect that it was being operated at a speed of from sixty to sixty-five miles an hour, although the Virginia law prescribed a maximum speed limit of fifty miles an hour for buses, see 1938 Supplement to Virginia Code of 1936, § 2154(109), (b) (5) and although the bus was meeting the automobile coming from the opposite direction on a portion of the road where the west shoulder was not usable.

There was a side-swiping collision, the left front corner of the bus striking or being struck by the oncoming car. How the collision occurred is in some doubt, as both drivers claim to have been on the proper side of the center of the road. It is clear, however, that both were near the center. Skidmarks made by the bus show that its right rear wheel was within nine inches of the east side of the road, which means that the left side of the bus must have been within three inches of the center line; and "scallop" marks made by the broken knee of the left front wheel of the automobile appear along the center line. The glass of the left headlight of the automobile was not broken, which tends to support the theory that the automobile did not run into the bus but that the bus ran into it; and this theory is strengthened by the fact that the automobile received no injury to the right of the left headlight while its left rear door received greater injury than its left front door and its left rear fender was sheared off while its left front fender was merely mashed in. This tends to corroborate the statement of the driver of the automobile to the effect that he was alongside the bus when the collision occurred.

Plaintiff testifies that immediately before the collision the bus driver rose in his seat for the purpose of adjusting his trousers; and this may explain the collision which occurred almost contemporaneously. The driver admits that he made no effort to apply the brakes and slow down the bus before the collision, although he was approaching an oncoming car in the night time on a narrow road, which was under construction as we have described, and where a dangerous situation could easily arise because of the narrowness of the pavement and the fact that the west shoulder was not usable. The driver testifies that he attempted to put on the air brakes after the collision but says that they would not work and that he was unable to steer the bus or hold it in the road. There is evidence that the steering apparatus was broken as a result of the collision and that the air was let out of the air brakes so that they would not work; but the hand brake with which the bus was...