Bennett v. Wood

• Decision Date: 10 November 1959
• Docket Number: No. 16270.,16270.
• Parties: James C. BENNETT and George Isenhower, Appellants, v. Carmelita WOOD, for the Benefit of Herself and Her Minor Children, William Michael Wood, Gordon Allen Wood and Pamela Diane Wood, and Carmelita Wood, in Her Own Right, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F.2d 349 (1959)

James C. BENNETT and George Isenhower, Appellants, v. Carmelita WOOD, for the Benefit of Herself and Her Minor Children, William Michael Wood, Gordon Allen Wood and Pamela Diane Wood, and Carmelita Wood, in Her Own Right, Appellee.

No. 16270.

United States Court of Appeals Eighth Circuit.

November 10, 1959.

Alston Jennings, Little Rock, Ark. (John M. Harrison, Little Rock, Ark., was with him on the brief), for appellants.

Henry Woods, Little Rock, Ark. (McMath, Leatherman & Woods and James E. Youngdahl, Little Rock, Ark., were with him on the brief), for appellee.

Before GARDNER, VOGEL, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The issue involved in this appeal is the sufficiency of the evidence to support a verdict and judgment thereon in favor of the plaintiff in an action for wrongful death resulting from the collision between a feed truck operated by plaintiff's decedent and a carnival truck¹ operated by defendant Bennett. Diversity of citizenship jurisdiction is established. Timely motions for directed verdict and judgment n. o. v. were made by defendants² and overruled.

This action was brought by plaintiff, Carmelita Wood, for the benefit of herself and her minor children, to recover damages suffered by reason of the wrongful death of her husband, William M. Wood, in a motor vehicle accident. Plaintiff's action is based on negligence. She claims that her damages were proximately caused by defendant Bennett's negligent operation of defendant Isenhower's carnival truck in the following respects: failure to keep a lookout, failure to control the truck, failure to drive at a careful and lawful speed, failure to yield one-half of the traveled way and to keep on the right side of the highway, and failure to observe the law prohibiting a vehicle from turning from a direct course on the highway before such movement could be made with reasonable safety. By amendment plaintiff asserted that Isenhower was negligent in sending Bennett out to drive the truck at a time when Bennett was unfit to do so because of fatigue resulting from excessive work and loss of sleep.

Defendants denied all the material allegations of the complaint as amended and that they were negligent in any respect charged, and asserted that the accident was caused or contributed to by Mr. Wood's negligence.

The following facts are undisputed. A collision occurred on September 15, 1957, at 4:45 o'clock A. M. on Highway No. 64 at a point five miles west of Clarksville, Arkansas, between the feed truck owned by General Mills and operated by Mr. Wood and the carnival truck owned by defendant Isenhower and operated by defendant Bennett, an employee of Isenhower, acting within the scope of his employment. It is conceded that Isenhower is legally responsible for any negligence in the operation of the truck by Bennett which may be established.

Immediately prior to the collision Mr. Wood was driving the feed truck on the highway in an easterly direction and Mr. Bennett was driving the carnival truck in a westerly direction. The highway is covered by concrete paving 18 feet wide. Each of the trucks was approximately 22 feet long and 7½ feet wide.

Photographs and expert testimony tend to establish the carnival truck struck the feed truck at about a 15 degree angle, the initial impact being just to the rear of the left front axle of the feed truck. The left door of the cab of the feed truck was sheared off and the steel body of said truck was disengaged and landed on the highway perpendicular to the line of traffic, the body covering the south half of the highway and extending 12 to 14 inches north of the center line. Mr. Wood was instantly killed as a result of the collision injuries. The truck he was driving, still in gear, came to rest against a culvert on the north side of the highway, about 165 feet east of the point of impact. The carnival truck came to rest on the north side of the highway, with its rear wheels in the ditch and its front wheels at or near the north edge of the pavement. The road was straight. There was a slight elevation to the west. A light rain was falling, and the pavement and shoulders were wet.

Debris, largely in the form of splinters from the wood body of the carnival truck and glass, was found on the highway, commencing at the center line and extending to the place where the carnival truck came to rest north of the pavement. There was no debris on the south half of the highway, except the steel body of the feed truck, as previously described.

Witnesses who examined the scene of the accident testified that they found no skidmarks, gouge marks, or spilled oil on the highway, to indicate the location of either of the trucks on the highway at the time of the collision.

Defendant Bennett was the only eye witness to the accident. Bennett was accompanied by Caldwell, a fellow employee, who testified by deposition that he was sleeping at the time of the collision and that he knew nothing about events leading up to the collision. Caldwell, as a result of the accident impact, was thrown through the right half of the windshield of the carnival truck and was found after the accident on the north shoulder of the highway.

Plaintiff's case is based entirely on circumstantial evidence. There is some doubt whether the sufficiency of the evidence in a diversity case must be tested under standards prescribed by federal law or under state standards. See Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935; Ford Motor Co. v. Mondragon, 8 Cir., 271 F.2d 342. In testing the sufficiency of the evidence, this court has followed the more liberal "more reasonably probable rule," rather than the stricter "exclusion of every other hypothesis rule." Adair v. Reorganization Inv. Co., 8 Cir., 125 F.2d 901, 905; Cudahy Packing Co. v. N. L. R. B., 8 Cir., 116 F.2d 367, 371.

In Penny v. Gulf Refining Co., 217 Ark. 805, 233 S.W.2d 372, 373, the court, in affirming directed verdict for the defendant in an automobile accident case based on circumstantial evidence, states:

"`A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff\'s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.\' * * *"

For the purposes of this case we will assume that the Arkansas court follows the more liberal "more reasonably probable rule," and that the same result would be reached regardless of whether standards prescribed by Arkansas law or federal law control.

Courts have uniformly held that verdicts cannot be based solely upon conjecture or speculation. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W.2d 4, 8; Missouri Pacific R. Co. v. Ross, 194 Ark. 877, 109 S.W.2d 1246, 1249; Adair v. Reorganization Inv. Co., supra; Henry H. Cross Co. v. Simmons, 8 Cir., 96 F.2d 482, 486; 32 C.J.S. Evidence § 1039.

The plaintiff and the trial court rely upon Anglen v. Braniff Airways, 8 Cir., 237 F.2d 736, and Continental Can Co. v. Horton, 8 Cir., 250 F.2d 637. Plaintiff cites these cases in support of her contention that a jury can choose between two conflicting theories of a collision. Plaintiff overlooks the limitation that such choice can be made only when the inferences upon which such theories are based can reasonably be drawn from the evidence. That such limitation exists is made clear by a careful examination of the cases as a whole and the rule applied in each of said cases, reading (at page 643 of 250 F.2d):

"* * * `In a jury case, where conflicting inferences reasonably can be drawn from the evidence, it is the function of the jury to determine what inference shall be drawn.\' * * *" (Emphasis supplied.)

In each of the cited cases we determined that evidentiary support existed for the inferences which formed the basis for the liability hypothesis.

Our sole problem here is to determine whether there is substantial evidence to support a finding of negligence on the part of the driver of the carnival truck in any of the respects charged. As we have heretofore pointed out, numerous specifications of negligence are asserted. Plaintiff...