Auto Transport v. Potter
| Decision Date | 01 July 1952 |
| Docket Number | No. 14510.,14510. |
| Citation | 197 F.2d 907 |
| Parties | AUTO TRANSPORT, Inc. et al. v. POTTER. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Price Shoemaker, St. Joseph, Mo. (Elmer E. Reital, St. Joseph, Mo., was with him on the brief), for appellants.
Gene Thompson, Maryville, Mo. (Ellis G. Cook, Raymond Eckles, Maryville, Mo., and Walter A. Raymond, Kansas City, Mo., were with him on the brief), for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.
On February 19, 1951, at about 6:30 p.m., the late Joseph Potter was driving his Chevrolet 1½ ton truck, loaded with coal, south on U. S. Highway No. 71, and was about one and one-half miles south of the town of Clearmont, in Nodaway County, Missouri. The highway at that place was straight and had a little slope to the north. The paved portion was 20 feet in width, and there were shoulders 12 feet wide on each side of the paving. At the same time and place, defendant John Robinson was employed in driving an automobile transport truck (a tractor-trailer assembly) for the defendant Auto Transport, Inc., north on the highway. The overall length of the transport was 45 feet, the tractor itself being 14 feet long, and the width of the vehicle was 8 feet. The transport was carrying four automobiles and weighed about 32,000 pounds. The evening was damp, misty, and "pretty foggy", and visibility was poor. As the two trucks proceeded in opposite directions they came into collision, a fire ensued, and Joseph Potter died in the burning wreckage.
Plaintiff, Maude Potter, the widow of the deceased Joseph Potter, filed her action for the wrongful death of her husband against the transport company and its driver in the Circuit Court of Nodaway County. The cause was thereafter properly removed by the defendants to the United States District Court for the Western District of Missouri, the plaintiff being a citizen of the State of Missouri; defendant Robinson a citizen of Kansas; defendant corporation being organized under the laws of the State of Delaware, and the sum in controversy being in excess of $3,000.
On the trial of the case to the court and a jury, plaintiff recovered a verdict in the amount of $12,000 on which judgment was entered, and the defendants perfected their appeal to this court.
Appellants contend that the trial court erred in denying their motion for a directed verdict in their favor which was made at the close of all the evidence, and the question for decision is whether the evidence was sufficient to present a submissible case on the issues presented.
In her complaint, the plaintiff alleged that her husband, the deceased Joseph Potter, was driving his truck south on U. S. Highway No. 71 "in a careful and prudent manner" and "that the defendants, in violation of their said duty, and in total disregard of the rights of the deceased, at said time and place, while defendants were so driving and operating said motor vehicle truck, known as a tractor and trailer, then and there failed to use the highest degree of care in the driving and operation of the same and drove and operated the same carelessly, negligently, recklessly, at a high and dangerous rate of speed, on the left hand side of said highway, the same being the West side, or wrong side thereof, without regard for the safety of plaintiff's said husband and others, and did then and there carelessly, negligently, and recklessly drive and operate said motor vehicle truck so as to place the same directly across and at an angle with said highway at said time and place", and that defendant's truck collided with plaintiff's husband's truck, killing him in the collision.
On the trial plaintiff produced no eye witness to the accident but undertook to show by physical facts observed after the occurrence that the defendant's transport had been driven on to the west or wrong side of the road and had then struck decedent's truck and caused the damages for which recovery was sought.
Photographs taken at the scene of the accident showed discoloration of, and damage to, the pavement on plaintiff's husband's proper side of the road. Plaintiff's witnesses, including a truck driver and a member of the Clearmont Fire Department, both of whom arrived at the scene shortly after the collision and before the collided vehicles were pulled apart, described the position the vehicles were then in as follows: The tractor portion of defendant's transport was pointing in a mostly westerly direction, but on a slight angle to the north; the rear wheels of the tractor were about on the center line of the highway, and the tractor practically filled the west half of the pavement; the trailer portion of the transport was pointing north with its left wheels about on the center line of the road; Potter's coal truck was "wedged" or "meshed" or "welded" into the right hand door of the defendant's tractor, the gas tank situated right behind the cab of the tractor and the right rear wheels of the tractor. The decedent's truck was pointed south and very slightly to the east and the radiator and right front fender (i.e., the fender on the west side of the south-going truck) were against the tractor.
Other testimony adduced by the plaintiff was to the effect that the fire coincidental with the collision burned so fiercely that it was necessary to pull the trucks apart in order for the fire trucks that arrived at the scene to fight the fire. This was accomplished with difficulty because they were so "welded" together. There was testimony that one fire truck pulled the Potter truck six or eight feet to the north in such a way that the truck was left in a position more to the east than its position had been when it was in contact with the transport.
Plaintiff's testimony when her case was rested, established that the two trucks, after the collision, were both positioned on the west or decedent's proper side of the highway, but the inquiry is not open on this appeal as to whether or not a submissible case had then been made out. Although defendants moved for a directed verdict on the ground of insufficiency of the evidence, they did not stand on their motion, but on its being overruled they proceeded further and adduced evidence in their behalf. By thus proceeding to put on evidence, defendants waived whatever right they may have had under the motion. Capital Transportation Co. v. Compton, 8 Cir., 187 F.2d 844; Boston Insurance Co. v. Fisher, 8 Cir., 185 F.2d 977.
The defendants presented a motion for a directed verdict in their favor for insufficiency of the evidence at the close of all the evidence which was overruled, and on this appeal all evidence submitted by both the plaintiff and the...
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...v. Ford Motor Co., 553 F.2d 46, 48 (8th Cir. 1977); Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969); Auto Transport v. Potter, 197 F.2d 907, 909 (8th Cir. 1952). When a claim of inadequate proof of damages is made, our concern is that a jury's verdict should not be based on spec......
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