Blum v. Cottrell

• Decision Date: 17 March 1960
• Docket Number: No. 7995.,7995.
• Citation: Blum v. Cottrell, 276 F.2d 689 (4th Cir. 1960)
• Parties: Bertha BLUM, Appellant, v. George A. COTTRELL, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

276 F.2d 689 (1960)

Bertha BLUM, Appellant, v. George A. COTTRELL, Appellee.

No. 7995.

United States Court of Appeals Fourth Circuit.

Argued January 19, 1960.

Decided March 17, 1960.

Paul Whitehead and J. Frank Shepherd, Lynchburg, Va. (Hymen Siegendorf, Passaic, N. J., on the brief), for appellant.

Jack E. Greer, Norfolk, Va. (Williams, Cocke, Worrell & Kelly, Norfolk, Va., on the brief), for appellee.

Before SOPER and BOREMAN, Circuit Judges, and BARKSDALE, District Judge.

SOPER, Circuit Judge.

This suit grows out of a collision between two automobiles on the morning of June 21, 1956, near Natural Bridge, Virginia, in which the plaintiff, Bertha Blum, was seriously and painfully injured. She was riding at the time in a car driven by her husband, William B. Blum, and the accident happened when he attempted to pass a trailer truck forty-five feet long going north on the road ahead of him and in so doing collided on the west side of the road with a car going south driven by George A. Cottrell. At the conclusion of the evidence at the trial of the case the judge instructed the jury that Blum was guilty of negligence as a matter of law in attempting to pass the trailer truck but that the plaintiff was nevertheless entitled to recover if the jury should find that the defendant was also negligent. The jury found a verdict for the defendant and the principal question on this appeal is whether the instruction in regard to Blum's conduct was incorrect and prejudicial to the plaintiff.

The road was a two lane highway twenty-two feet wide with a shoulder ten feet wide on the east side and a shoulder seven feet wide on the west side. In the center of the road for a considerable distance each way from the point of collision there was a broken white line indicating that passing under proper circumstances was not forbidden. At the time of the collision the road was wet since it had recently rained and it was still drizzling. After the accident freshly made skid marks, obviously caused by the Blum car, were found in the southwest lane of the road running for a distance of 143 feet from the south to the point of collision, which was just off the asphalt pavement on the west shoulder. The Cottrell car came to rest on the shoulder of the road twelve feet from the west side of the pavement. From the point of collision, looking north, the road was visible for 819 feet, where it curved to the west; and looking south there was a clear view of the road for 954 feet. There was, however, a long curve in the road in this area and the road was not entirely visible for the full total of 1,773 feet looking south from the curve in the road above mentioned.

Mr. Blum's account of the catastrophe was to the following effect. For some miles his car had been following the tractor trailer and an intervening yellow car going north at the rate of thirty to thirty-five miles per hour, and then the yellow car crossed the center line and passed the tractor trailer and returned to the northbound lane. Mr. Blum, who had also been looking for an opportunity to pass, then turned his car left sufficiently to enable him to see the yellow car as it passed the tractor trailer, whereupon he turned his car into the southbound lane and increased his speed ten to fifteen miles per hour so as to pass. When he had proceeded 100 feet and was midway of the tractor trailer he caught sight of the Cottrell car rounding the curve in the road, 800 to 900 feet to the north, approaching at a speed of sixty-five to seventy miles per hour. He applied his brakes immediately and reduced his speed but the Cottrell car came on without apparent reduction of speed and seemed to go out of control, first leaving the paved portion of the road onto the wet shoulder and then returning to the pavement. Mr. Blum then tried to get his car off the pavement and onto the wet shoulder but was unable to avoid the collision and his car was hit on its right side by the left front of the Cottrell car. At that moment the Blum car had almost come to a stop.

J. Leslie McDaniel, a resident of the neighborhood, testified on behalf of the plaintiff to the following effect. He was going south in his car on the road at a speed of fifty to fifty-five miles per hour toward the scene of the accident. A short time before it occurred and when he was eight-tenths of a mile from the point of collision, going up a steep grade, the Cottrell car passed him at a speed which exceeded his speed by fifteen or twenty miles per hour. He followed the Cottrell car to the top of the hill then around the curve down the hill toward the scene of the collision and saw the accident happen about 600 feet below the summit.

The account of the accident given by the defendant Cottrell, which was strongly supported by James Miller, the driver of the tractor trailer, differed greatly from the testimony of Blum as the following summary shows. According to Miller, three automobiles were following him as his vehicle labored up a long grade in second gear from the south at a speed of fifteen miles per hour toward the scene of the collision. Behind him there came first a greenish car, then a brown one, and, last, the blue car of Blum. When Miller reached the top of the grade he could see a stretch of road for 800 or 900 feet northerly to the curve. At that time the first of the three cars passed him and he increased the speed of his own vehicle to thirty-five miles per hour. The brown car, second in line, then came alongside the trailer in order to pass and at that moment Miller noticed the Cottrell car coming around the curve toward him at a speed of fifty miles per hour. The Cottrell car slowed down and went partly onto the wet shoulder of the road to make room for the passing of the brown car and it was able to get back safely into the northbound lane when the distance between the two cars was something less than two hundred feet. Very shortly thereafter Miller saw in his mirror the Blum car collide with the Cottrell car alongside the trailer truck, a few feet from its rear end.

Cottrell's testimony was in accord with this recital. As he was driving south at the rate of about fifty miles per hour he approached the foot of a long incline or hill leading to the curve in the road north of the point of collision. Ahead of him on his side of the road was...