Bern v. Evans

• Decision Date: 03 August 1965
• Docket Number: No. 17811.,17811.
• Parties: Wilbur O. BERN, Appellant, v. Cedric A. EVANS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

349 F.2d 282 (1965)

Wilbur O. BERN, Appellant, v. Cedric A. EVANS, Appellee.

No. 17811.

United States Court of Appeals Eighth Circuit.

August 3, 1965.

Warren C. Schrempp, of Schrempp, Lathrop & Rosenthal, Omaha, Neb., David S. Lathrop, Henry C. Rosenthal, Jr., and Richard J. Bruckner, of Schrempp, Lathrop & Rosenthal, Omaha, Neb., for appellant.

Patrick W. Healey, of Healey, Healey & Goth, Lincoln, Neb., George Healey and John R. Baylor, of Baylor, Evnen, Baylor & Urbom, Lincoln, Neb., for appellee.

Before MATTHES and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

REGISTER, District Judge.

This is a personal injury case, arising out of a motor vehicle accident, in which appeal is taken from a judgment entered (pursuant to jury verdict) in favor of defendant-appellee and from an order of the District Court denying plaintiff-appellant's motion for new trial. Diversity jurisdiction is clearly established.

The parties will be referred to in this opinion as they were in the court below — that is, Mr. Bern, the appellant here, will be referred to as plaintiff, and Mr. Evans, the appellee here, will be referred to as defendant.

The accident occurred at approximately ten o'clock A.M., April 11, 1961, on U. S. Highway 6, about three miles west of Milford, Nebraska. The highway at this point runs in an east-west direction. The roadway is constructed of concrete, is straight and generally level with a slight incline to the west. The regularly traveled road surface is twenty feet in width. At the time of the accident the sky was overcast with a light rain or drizzle falling; the pavement was wet, and it had previously rained hard. Though the drivers of all vehicles involved were using their windshield wipers, visibility was generally good.

The four vehicles directly involved in the collision were as follows:

Vehicle #1. A 1960 GMC tractor-trailer unit driven by the plaintiff.

Vehicle #2. A 1956 Chevrolet 2-door sedan driven by Grover C. Johnson.

Vehicle #3. A 1961 Oldsmobile 4-door sedan driven by Fred Laux.

Vehicle #4. A 1956 Chevrolet station wagon driven by Neville Piel.

In addition to the described vehicles there was involved (though indirectly, in that no actual contact was made with this vehicle) the 1958 Renault automobile owned and then being operated by the defendant, Mr. Evans.

As a result of the collision (initially involving vehicles #1 and #2) and ensuing fire, the occupants of vehicles #2 and #3 were fatally injured.

At and immediately prior to the happening of the accident, plaintiff in vehicle #1 was proceeding at approximately 45 miles per hour in a westerly direction. Vehicles #2, #3 and #4, in that order, were approaching from the west, proceeding in an easterly direction. The evidence shows these three vehicles were traveling two to three car lengths apart, at a speed approximating 45 miles per hour.

Defendant testified that, while traveling west on Highway 6, he had overtaken the plaintiff about one mile west of Milford. He thereupon undertook to pass plaintiff's vehicle, but, because of approaching traffic and the fact that mud and water was being thrown by the wheels of plaintiff's truck, defendant did not actually pull into the eastbound lane with the intention of passing that truck until he reached the vicinity of the accident. As he passed the left rear wheels of plaintiff's truck and drew alongside the trailer portion of that unit, a large quantity of muddy water was thrown onto the windshield of defendant's car, thereby momentarily obscuring his vision. Defendant immediately eased off his acceleration, although he did not completely remove his foot from the accelerator. When the windshield wipers had cleared his windshield, defendant began accelerating again. At this instant he noticed approaching traffic; this approaching vehicle was, in fact, vehicle #2. Defendant's vehicle at this point had progressed to a position well farward on plaintiff's trailer but had not yet reached the tractor. Defendant's testimony is that his speed at this time was approximately 60 miles per hour, and that the approaching car (vehicle #2) was then approximately four to five blocks away.

Faced with the situation described, defendant determined his best course of action was to pull further to the left, onto the shoulder of the highway, in order to permit the approaching vehicle (#2) to pass between him and the plaintiff. This he proceeded to do. His best estimate is that the approaching car was still "well over three blocks" distant and in its own lane of travel on the highway when he pulled onto the south (left) shoulder of the highway. Because of the soft, muddy condition of the shoulder, defendant's car was pulled into the ditch, where it proceeded west until coming to a stop. From the time that defendant first pulled his vehicle onto the shoulder, he remained south of the traveled portion of the roadway. Defendant did not see the accident; by the time he brought his own vehicle to a stop, the collision had occurred.

Mr. Piel (driver of vehicle #4) testified that the first indication he had of an emergency situation, or the possibility of an accident, was when vehicle #2 (the second car in front of him) "went into a sort of a fishtail or a skid". At the same time, he observed the taillights on vehicle #2 go on, and that it moved into the wrong (westbound) lane of traffic. Almost immediately thereafter vehicles #1 (plaintiff) and #2 collided. As a result of this impact, vehicle #2 was "either throwed (sic) or shoved" into vehicle #3, which was in turn struck by vehicle #4, being driven by Mr. Piel. Vehicles #2 and #3 came to rest on the roadway and were burned; only slight damage was sustained by Mr. Piel's vehicle. Plaintiff's truck, following impact with vehicle #2, proceeded through the ditch on the north side of the road and came to rest in a field some distance west of the point from which it left the roadway.

Plaintiff's testimony reveals that, on the morning of the accident, he was proceeding toward Fairmont, Nebraska, with a load of feed; that he was traveling about 40 to 45 miles per hour; that the weather and road conditions were, generally, as previously described; that there was the usual or ordinary flow of traffic on Highway 6; and that the first indication he had of an emergency or the possibility of an accident was when the front of the oncoming car (vehicle #2) "nosed down with a sudden movement as though the brakes had been applied rather quickly and severely". He observed the oncoming car appear to go into a skid, and to proceed across the center line into his (plaintiff's) lane of travel. Plaintiff immediately applied his brakes and turned his vehicle toward the ditch on the north side of the highway. At the same time, he observed through his left side window defendant's car, proceeding in the same direction he was then traveling. Impact with vehicle #2 followed, that vehicle striking the left front portion of plaintiff's tractor. Plaintiff testified that the right front wheel of his tractor was off the pavement at the time of impact with vehicle #2. Plaintiff further testified that vehicle #2 was approximately 150 feet away from him when he first saw its actions as above described.

Immediately upon his vehicle coming to rest in the field, plaintiff left the cab and returned to the scene of the collision, where he proceeded to render what aid he could to the injured occupants of vehicles #2 and #3. The investigating officer (Trooper Karthauser) was a member of the Nebraska Safety Patrol. He received notice of the accident by radio, while on patrol, and went directly to the scene of the accident. According to his testimony, the physical evidence revealed the following significant facts: No skid marks were found on the highway. Defendant's automobile came to rest at a point 216 feet west from where it left the highway; from the front end of defendant's car (which was resting generally in a northwest-southeast direction) to the rear end of vehicle #2 (which came to rest approximately in the middle of the pavement, pointing in a north-westerly direction) the distance measured 171 feet, west. The distance between the back end of plaintiff's semitrailer, which came to a stop facing generally in a northwesterly direction, and the front of vehicle #2, measured 125 feet.

These undisputed facts establish that the impact occurred a minimum distance of 387 feet west of the point where defendant's vehicle left the roadway. Since the eastbound and westbound traffic were both traveling at approximately the same speed (45 miles per hour), it is a reasonable and justifiable inference to conclude that the oncoming car (vehicle #2) was at least 774 feet distant from defendant's vehicle when the latter actually left the roadway.

Jurisdiction of the Federal Court obtaining in this case by reason of diversity of citizenship and the requisite amount in controversy, the District Court correctly looked to the substantive law of the State of Nebraska in fixing the rights and liabilities of the parties. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. In reviewing this negligence action, we must consider (as did the District Court in passing on plaintiff's motion for new trial) the evidence and reasonable inferences drawn therefrom in the light most favorable to the defendant. State Farm Mutual Automobile Insurance Company v. Jackson et al., 8 Cir., 346 F.2d 484, June 10, 1965, and Gamble v. Gamble, 171 Neb. 826, 108 N.W.2d 92.

Plaintiff asserts as error on this appeal the giving by the trial court of certain instructions to the jury. In substance, plaintiff contends the trial court committed reversible error in each of two basic particulars. He contends that it was reversible error to submit to the jury the issue of contributory negligence on the part of the plaintiff, and that it was...