Bailey v. Pennington
| Decision Date | 26 February 1960 |
| Docket Number | No. 16297.,16297. |
| Citation | 274 F.2d 328 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | Roy E. BAILEY, Appellant, v. Coy W. PENNINGTON et al., Appellees. |
Donald P. Lay, Omaha, Neb., made oral argument for appellant.
Harold Kauffman, Omaha, Neb., presented oral argument for appellee, Pennington, and Mr. Harry B. Otis, Omaha, Neb., made argument for appellee, Chicago and Northwestern Railway System.
Before GARDNER, SANBORN and VOGEL, Circuit Judges.
Plaintiff-appellant brought this suit for personal injuries against defendant-appellee Pennington, driver of a vehicle in which plaintiff was riding, and against defendant-appellee Chicago and Northwestern Railway, whose train collided with the vehicle at a crossing within the city limits of Elgin, Nebraska, on January 14, 1955. Diversity of citizenship and the amount involved make for federal court jurisdiction. At the conclusion of the plaintiff's case the trial court granted motions for directed verdicts in behalf of each of the defendants on the grounds that: (1) The plaintiff was a "guest" within the meaning of the Nebraska guest statute and, therefore, was not entitled to recover against the defendant Pennington, there being no showing which could justify a finding of gross negligence; (2) there was no negligence on the part of the defendant railway which proximately contributed to the accident; and (3) the plaintiff could not recover against the railway in any event because he, himself, had been contributorily negligent. Judgments were accordingly entered for the defendants, from which result plaintiff appeals.
Plaintiff was a training officer in the vocational rehabilitation education division of the Veterans Administration Regional Office. The Veterans Administration contracted with the Nebraska State Department of Vocational Education for the latter to provide rehabilitation instruction for disabled veterans. Defendant Pennington was an instructor employed by the state under this program. The contract provided for the payment of a fixed per pupil tuition by the Veterans Administration to cover the expenses of rehabilitation instruction, the salary and travel costs of the instructors, and the like. It was the duty of the training officer to confer with the instructor at least once a month with respect to each veteran in the program for the purpose of giving the instructor all pertinent information which would aid these pupils in their rehabilitation, and to check upon their progress to this end. The training officer, along with the instructor, also met at least once a month with the disabled veterans at the site of their job to ascertain the effectiveness of the instruction. If the training officer determined that a veteran was not satisfactorily progressing toward his rehabilitation goal, he was authorized to remove him from the program, which action would have the effect of terminating the tuition payments made to the state for that veteran and consequently diminishing the salary of the instructor. It was the practice of the training officer and the instructor to travel in only one car when visiting a disabled veteran. The purpose of this arrangement was to save time by allowing them to discuss the veteran and his rehabilitation problems while traveling. The use of a single vehicle also resulted in a saving to the government in travel expense reimbursements.
In the instant case, the accident occurred when plaintiff and defendant Pennington were returning in the latter's car from a consultation at a disabled veteran's farm. It had been their practice always to use Pennington's car, rather than the plaintiff's for this purpose as he had expressed a desire to receive the mileage allowance. At the time of the accident plaintiff and Pennington were proceeding in an easterly direction on Highway No. 80 within the city limits of Elgin, Nebraska. A train of the defendant railway company was traveling in a southerly direction toward Highway No. 80. West of the crossing visibility of the railroad track to the north from Highway 80 was obscured by houses, trees and bushes. Plaintiff testified that when the car was within 200 to 250 feet of the railroad crossing Pennington reduced his speed to 20 to 25 miles per hour from an estimated speed of 35 to 40 miles per hour. As the automobile approached the railroad crossing, plaintiff looked both to the right and to the left but failed to see the approaching train until they were within 50 to 75 feet of the track, at which time he hit Pennington with his left arm and pointed to the train. Pennington looked toward the train but did nothing. At that time the engine of the train was about 100 to 125 feet from the crossing and, according to plaintiff, traveling at a speed between 30 and 35 miles per hour, which speed, he testified, was at no time lessened prior to the impact. The train struck the car and pushed it into a switch 75 feet down the track, with the engine continuing on an additional 40 feet. Prior to the accident plaintiff did not hear any whistle or bell.
Fred Anderson, the train engineer, testified that he was traveling approximately 18 to 20 miles per hour. When the engine was within 400 feet of the crossing he saw the Pennington car, which was at that time 600 feet west of the track. Anderson did not take his eyes off the car and when it was approximately 200 feet away from the crossing he could see the driver's face and could tell that he wasn't looking at the train. Anderson estimated that the speed of the car was then 35 to 40 miles an hour and that it continued up to the crossing at the same rate of speed. 200 feet west of the crossing a road leading to the south running parallel with the railroad track intersected with Highway No. 80. Anderson testified that when the vehicle passed that road without turning, he knew it was not going to stop for the train. He claimed to have then sounded his whistle and applied his automatic brake at which time, he asserted, the car was closer to the track than it was to the road leading south and the train engine 120 feet from the crossing.
We first consider whether plaintiff was a guest within the purview of § 39-740 R.R.S.Neb.1943, which statute provides:
(Emphasis supplied.)
The court below found that the plaintiff did come within the statutory definition and that, as the facts did not justify a finding of gross negligence, he could not recover from the defendant Pennington. We think the trial court was in error in so concluding.
The Supreme Court of Nebraska, in Van Auker v. Steckley's Hybrid Seed Corn Co., 1943, 143 Neb. 24, 8 N.W.2d 451, 453, in respect to the considerations controlling whether or not a passenger is a "guest" under the statute, explained as follows:
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