Bailey v. Slentz
| Decision Date | 11 May 1951 |
| Docket Number | No. 4129.,4129. |
| Citation | 189 F.2d 406 |
| Parties | BAILEY v. SLENTZ et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ernest U. Sandoval, Walsenburg, Colo., for appellant.
John F. Eberhardt, Wichita, Kan. (George B. Powers, Wichita, Kan., and John A. Etling, Kinsley, Kan., were with him on the brief), for appellees.
Before PHILLIPS, Chief judge, and HUXMAN and MURRAH, Circuit Judges.
This was an action by Morris Bailey to recover damages for personal injury sustained as the result of a collision between an automobile driven by him and a truck driven by Paul Cannon within the scope of his employment by the remaining two defendants. At the close of plaintiff's evidence, defendants moved for a directed verdict, among others on the ground that Bailey's evidence affirmatively established contributory negligence as a matter of law. This motion was denied. At the conclusion of all the evidence, the motion was renewed. The court reserved its ruling thereon and submitted the case to the jury. The jury returned a verdict for plaintiff. Following the verdict on January 23, 1950, the defendants filed a motion for judgment, notwithstanding the verdict and in the alternative for a new trial. The court heard this motion on February 24, 1950, took it under advisement, and on February 28, 1950 entered judgment, setting aside the verdict, and entered judgment for defendants. The court further held that it was not satisfied with the verdict of the jury. It was, therefore, further ordered that in event, but only in event the judgment entered in favor of the defendant was reversed or set aside on appeal, that defendants' motion for a new trial be sustained. It is from this judgment that this appeal is prosecuted.
At the time of the argument, counsel for Bailey contended that the court erred in granting the motion for a new trial in the alternative. It is now, however, settled by the decision of the Supreme Court that it was the court's duty under Rule 50(b) of the Rules of Civil Procedure, 28 U.S.C.A., to pass upon both motions. See Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147.
The sole remaining question is whether the evidence established as a matter of law that Bailey was guilty of contributory negligence warranting the court in entering judgment for defendants, notwithstanding the verdict. The collision occurred at an intersection of Highway 50 South running East and West, with a secondary highway running North and South. Highway 50 South is 80 feet wide. The travel portion thereof is 22 feet wide. A stop sign is located approximately 30 feet South of the South line of Highway 50 South, where it is intersected by the secondary highway.1 Bailey was traveling West on Highway 50 South and Cannon was approaching Highway 50 South from the South on the secondary highway in a truck. Bailey had an unobstructed view of the intersection from 400 feet away; likewise Cannon, as he approached the intersection, had an unobstructed view 400 feet East along Highway 50 South. The weather was clear and visibility was unobstructed. Bailey testified that he was traveling about 50 miles per hour; that when he was about 400 feet from the intersection he saw Cannon's truck approach from the South about 75 to 100 feet South of the Highway and that Cannon appeared to be slowing down; that he estimated the truck to be traveling from 15 to 20 miles per hour and that it appeared to be He testified that after he first observed the truck, it slowed down to 5 or 7 miles per hour; that it was then about 50 feet South of the highway and continued at this slow speed until it got within 10 feet of the highway. Asked on cross-examination within what distance he could stop his car, he replied that "he did not want to say." Being further pressed, he replied: "I would say maybe 100 feet." He testified that for a minute after he saw the truck apparently increase its speed, he still thought he was going to stop and that he could not say exactly the exact second when it dawned on him that he was not going to stop. The pavement showed skid marks of Bailey's car for from 40 to 50 feet back from the point of impact.
Cannon, the driver of the truck, testified that he was driving his truck at all times in what was known as "low, low speed" and that the maximum obtainable speed in this gear was 5 miles per hour and that he was traveling not more than 4 miles per hour at any time. He further testified that he stopped at the stop sign, looked to the East, but saw no car approaching and that he then started across the intersection without again looking.
Appellee contends that Bailey's statement that he was about 200 feet away when he concluded Cannon was not going to stop and his further...
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