Brinegar v. Green

• Decision Date: 04 February 1941
• Docket Number: No. 11804.,11804.
• Citation: 117 F.2d 316
• Parties: BRINEGAR v. GREEN et ux.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F.2d 316 (1941)

BRINEGAR v. GREEN et ux.

No. 11804.

Circuit Court of Appeals, Eighth Circuit.

February 4, 1941.

COPYRIGHT MATERIAL OMITTED

Philip H. Cless, of Des Moines, Iowa (Hallagan, Fountain, Steward & Cless, of Des Moines, Iowa, and Smith & O'Connor, of Dubuque, Iowa, on the brief), for appellant.

F. S. Fillmore, of Des Moines, Iowa (Kenline, Roedell & Hoffmann, of Dubuque, Iowa, and Putnam, Putnam, Fillmore & Putnam, of Des Moines, Iowa, on the brief), for appellees.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The plaintiff appeals from a judgment upon a verdict directed for the defendants in an action for damages for personal injuries sustained by plaintiff in an automobile collision between the Plymouth car owned and operated by the plaintiff's husband and a Dodge car operated by the defendant Mrs. K. M. Green, with the consent and permission of the owner, the defendant K. M. Green. The single question presented is whether the District Court erred in directing a verdict for the defendants.

The accident occurred at about 11 o'clock on the morning of March 29, 1939, on U. S. Highway No. 6, approximately nine miles southeast of Grinnell, Iowa. At that point the highway is level and straight. The road is paved. At the time of the accident the temperature was near the freezing point and a heavy snow was falling. The pavement and shoulders were covered with snow and slush to a depth of an inch and a half to two inches. The plaintiff submitted evidence that the edges of the pavement were clearly distinguishable, that car tracks were visible on both sides of the roadway, and that the black center line could be seen at some points.

The plaintiff's husband, Dr. Willard C. Brinegar, with whom plaintiff was riding, testified that prior to the collision he was driving east on his own or the south half of the pavement. Both windshield wipers on his car were working and he was proceeding at a rate of from 20 to 30 miles an hour. He saw the defendants' car approaching from the east on its own or north side of the highway. He noticed nothing unusual about its operation when he first saw it. With reference to the collision his testimony is that just before the two cars "would have met" and passed, the defendants' car turned at right angles to the pavement and swung in front of his car. He stated that he applied his brakes when he saw the other car coming across the road but that he did not have time to turn either to the right or left before hitting it.

The plaintiff testified that she was looking over the fields to her right and did not see the approach of the Green car. Her attention was first called to it when her husband warned her to brace herself. She stated that she then turned and saw the Green car headed south across the highway; and that she did not have time to brace herself before the collision occurred.

Aside from the occupants of the two cars involved in the collision the plaintiff's witness, Earl McKeag, was the only eyewitness to the events immediately preceding the accident. He stated that he was sitting in the front room of his farm home located some 50 to 100 feet south of the highway and a short distance east of the point of the collision. He testified that he glanced out of the front window and first noticed the Green car proceeding west at a point on the highway a few feet west of the house; that it was on the north or right shoulder of the highway traveling at a rate of speed of from 35 to 40 miles an hour; that he watched it for a distance of from 50 to 100 feet; that it then "whipped around and crashed"; that he heard the crash but could see only the back end of the Green car as his view to the west was then cut off by a row of evergreen trees west of his home; and that the Green car had not stopped from the time that he first saw it until he heard the crash of the collision.

The plaintiff's evidence is contradicted by the defendants' testimony in respect to the visibility of the pavement, the speed of the defendants' car, and the circumstances surrounding the accident. Mrs. Green, corroborated by another occupant of the car, testified to the following facts: She was driving west on the highway at a rate of from 15 to 20 miles an hour. A heavy snow storm was in progress and large wet flakes of snow were hitting against the windshield of her car. The right windshield wiper had been turned off but the wiper on the left side was working and visibility was perfect through that portion of the windshield. The pavement and the shoulder were covered with snow and at the point of the collision the edge of the pavement could not be distinguished from the shoulder of the road. As she approached the point of collision the right rear wheel of her car slipped off the pavement. She immediately applied the brakes and turned the front wheels to the left so as to get back on the pavement. After traveling 15 or 20 feet the car abruptly turned across the pavement and stopped on the south side with the rear wheels about the center of the pavement. After her car had come to a stop she turned to her left or the east and looked to see whether it was safe to back on to the right side of the highway. She then looked to the west and saw the headlights of the Brinegar car coming out of the storm about 175 to 200 feet away. She tried to shift to reverse gear but her car was struck on the right side before she was able to complete the operation. About two or three seconds elapsed from the time that she first saw the lights of the Brinegar car until the collision.

There is no dispute in the testimony as to the position of the cars immediately after the collision. Neither car overturned. The car in which plaintiff was riding remained on its own or the south side of the pavement pointed toward the east. The defendants' car was on that side, crosswise in the highway with its rear wheels near the center line and its front end pointed south on or near the south shoulder of the road. The two cars had bounced apart and some 5 to 8 feet separated one from the other.

In her complaint the plaintiff alleged that the defendant Mrs. K. M. Green was negligent in the following particulars: (1) In failing to have her automobile under control; (2) in failing to keep a proper lookout; (3) in driving at a high and dangerous rate of speed under the circumstances; and (4) in failing to yield one-half of the traveled way to the automobile in which plaintiff was riding.

The District Court refused to submit the issues to the jury on any of the grounds of negligence charged in the complaint. In sustaining the defendants' motion for a directed verdict the court held that when the rear wheel of her car slipped off the pavement Mrs. Green was confronted with an exigency, presenting imminent danger of disaster, which required her immediate and concentrated attention to bring the car back on the pavement. With respect to the first ground of negligence charged the court held that there was no evidence that the car was not under control and that the failure to control the traction of the car on the slushy pavement during an unusual exigency was not negligence as a matter of law. As to the second ground the court held that in view of the necessity for the driver's concentration in righting the car a failure to see an approaching car could not be "attributed as negligence." As to the third ground the court held the undisputed evidence was that the car was stopped within 14 or 15 feet after it came off the north shoulder and it was therefore impossible to conceive that it had been moving at a high and dangerous rate of speed. And as to the fourth ground the court held that the evidence was undisputed that the Green car was at rest at the time of the approach of the Brinegar car and under these circumstances the requirement of yielding one-half of the traveled way had no application.

In so ruling we think that the court was in error. The determination of the existence of negligence where the evidence is conflicting or the undisputed facts are such that fair-minded men may draw different conclusions from them is a question of fact for the jury and not one of law for the court. Gunning...