Bishop v. Wight

• Decision Date: 17 February 1915
• Docket Number: 4092.
• Citation: 221 F. 392
• Parties: BISHOP v. WIGHT.
• Court: U.S. Court of Appeals — Eighth Circuit

221 F. 392

BISHOP v. WIGHT.

No. 4092.

United States Court of Appeals, Eighth Circuit.

February 17, 1915

Rehearing Denied May 3, 1915.

Hughes & Dorsey and E. I. Thayer, all of Denver, Colo., for plaintiff in error.

Henry E. Lutz, of Denver, Colo., for defendant in error.

Before CARLAND, Circuit Judge, and T. C. MUNGER and YOUMANS District judges.

YOUMANS District Judge.

Edna F Bishop brought suit in the state court against George Wight for the alleged negligent killing of her husband, Samuel E Bishop, and the case was removed to the federal court, where, upon trial, at the conclusion of the evidence, the jury was directed to return a verdict for defendant.

There are 32 assignments of error. In the brief for plaintiff in error these are reduced substantially to 2: That the court erred: (1) In directing a verdict in favor of the defendant. (2) In refusing to permit plaintiff's counsel to ask the witness Metz, testifying as an expert, certain questions.

The complaint charges, in substance, that the defendant, Wight, was driving an electric automobile along one of the streets of Denver at a greater rate of speed than was reasonably safe, and that he so negligently operated the vehicle that he drove it suddenly and violently upon the sidewalk, and caused it to strike Samuel E. Bishop, who was walking thereon, and to inflict upon him injuries from which he afterwards died. The answer details the occurrences leading up to the striking of Bishop as follows:

'That in the forenoon of the 25th day of July, A.D. 1912, this defendant was lawfully riding in and operating an electric automobile, directing the same in a northwesterly direction upon and along that certain street or thoroughfare in the city and county of Denver, Colo., known as Fifteenth street; that this defendant was driving or directing said automobile on the right or proper side of said street, and that he was then and there exercising all due and reasonable care in the management, driving, operation, and control thereof, having regard to the location and safety of the public and the then condition of traffic, and further that he was then and there, and at all times in said complaint mentioned, in all matters, things, and respects observing and conforming to all rules, regulations, laws, and ordinances with respect to the operation, driving, and control of vehicles, and was exercising all due, reasonable, proper, or possible care in the premises, and while so engaged, and while driving said electric automobile down or in a northwesterly direction upon said Fifteenth street as aforesaid, at the time aforesaid, and when within about 75 feet below or northwest from the point or place where that certain street or thoroughfare in the city and county of Denver, Colo., known and designated as Glenarm street, intersects with said Fifteenth street, and while and when this defendant was so rightfully, properly, and lawfully thereon, and driving thereon as aforesaid, and while this defendant was so exercising and observing all due, proper, possible, or reasonable care and caution as aforesaid, and while he was operating and driving the aforesaid electric automobile at a rate of speed not to exceed from four to six miles per hour, the said automobile so driven by this defendant as aforesaid was struck with great force and violence by a certain very large and heavy vehicle, known and designated as an automobile touring car, the motive power whereof was an engine propelled by gasoline, and which said touring car was then and there occupied, driven, and under the care and management of one Lester G. Palmer, who then and there negligently, carelessly, and unskillfully, and without having due or any regard for the safety of the public or of this defendant, steered, drove, and directed the said touring car at a high and excessive rate of speed, and negligently and carelessly, and in an effort to pass the electric automobile so driven by this defendant as aforesaid, did so manage, handle, and direct said touring car or automobile that the rear right wheel thereof collided with and against the electric automobile so driven by this defendant as aforesaid, and especially did the said touring car, so negligently and carelessly driven by the said Palmer as aforesaid, collide with great force and violence against the left front wheel of the electric automobile of this defendant. This defendant further avers and alleges that the steering or guiding mechanism or machinery of the electric automobile so driven by this defendant was then and there connected with and attached to and operated upon the front wheels thereof, and that when the said touring car, so driven and directed by the said Palmer as aforesaid, collided therewith, and with the left front wheel thereof. then and there the said steering mechanism, as well as the power control of said electric automobile, was violently displaced, dislocated, and disarranged, and being so displaced, dislocated, and disarranged was then and there temporarily rendered wholly beyond the power of this defendant or of any human agency to control; that so great and violent was the impact of the said touring car, so driven and directed by the said Palmer as aforesaid, that the electric automobile, so driven and occupied by this defendant as aforesaid, and notwithstanding the immediate, forcible, and continued application of the brakes thereto by this defendant, was suddenly and with great violence carried to and thrust upon the sidewalk upon the northeasterly side of said Fifteenth street, and that then and there, and wholly beyond the power of this defendant or any human agency to prevent, the said electric automobile, so driven by this defendant as aforesaid, was also carried to and thrust upon the person of said Samuel E. Bishop, who was then and there upon said sidewalk.'

The testimony showed that the injury occurred substantially as stated in the portion of the answer above quoted.

The questions put to Metz were intended to elicit statements to the effect that after the striking of the front wheel of the electric automobile by the hub of the wheel of the touring car, thereby causing the former to turn abruptly towards the sidewalk, it could have been stopped by Wight within such a distance as would have avoided the striking of Bishop. The questions were put in different forms. The following may be taken as a fair representative:

'Q. Suppose, Mr. Metz, that two cars are proceeding in a northerly direction down Fifteenth street, one an electric coupe and the other a five-passenger Cadillac touring car, and the left wheels of the electric coupe are approximately 6 to 16 inches from the right car track of the inbound track--right rail of the inbound track-- and the automobile (gas car) is operating in the same direction, and while going past the electric coupe the rear hub of the right rear wheel thereof comes in contact with the rim of the left front wheel of the electric, causing the front wheels to turn at an angle so that, if the movement of the electric coupe were continued, it would strike the curb, apparently both front wheels at the same time; and suppose, further, that this Ohio electric is operated under the first or second speed, going ahead: State to the jury what in your judgment would be the distance that machine could be stopped in by an immediate application of the brakes immediately after the point of contact or impact and the shutting off of the power?'

The court sustained objections to these questions upon the ground that they were not matters for expert testimony. We think this ruling of the court was correct.

'The primary rule, concerning all evidence, is that personal knowledge of...