Burcham v. JP Stevens & Co.

• Decision Date: 04 January 1954
• Docket Number: No. 6659.,6659.
• Citation: 209 F.2d 35
• Parties: BURCHAM v. J. P. STEVENS & CO., Inc., et al.
• Court: U.S. Court of Appeals — Fourth Circuit

209 F.2d 35 (1954)

BURCHAM v. J. P. STEVENS & CO., Inc., et al.

No. 6659.

United States Court of Appeals Fourth Circuit.

Argued November 17, 1953.

Decided January 4, 1954.

John B. Browder, Richmond, Va., for appellant and cross-appellee.

G. Kenneth Miller, Richmond, Va. (John G. May, Jr., Richmond, Va., on the brief), for appellees and cross-appellant.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and CHESNUT, District Judge.

PARKER, Chief Judge.

These are cross appeals in a motor vehicle collision case. The plaintiff in the court below was Herman S. Burcham, who was driving one of the motor vehicles involved in the collision, and the defendants were J. P. Stevens & Company, Incorporated, the owner of the other vehicle, and Clifford Dewey Lanier who was driving it. The plaintiff asked damages of the defendants on account of personal injuries sustained in the collision, which he claimed was due to the negligence of the defendants. The defendants denied negligence and claimed that the collision was due to the negligence of plaintiff. The defendant J. P. Stevens & Company filed a cross claim against plaintiff to recover for damages sustained by its motor vehicle in the collision. The case was tried before a jury which returned a verdict for plaintiff in the sum of $7,500 and denied recovery on the cross claim. The trial judge granted a motion of defendants for judgment non obstante veredicto based upon a motion made for a directed verdict at the conclusion of the evidence but denied motion of J. P. Stevens & Company for such a judgment on its cross claim. From judgment entered in accordance with this ruling both plaintiff and J. P. Stevens & Company have appealed.

It is well settled that on a motion for a directed verdict or on motion for judgment n. o. v. based on such motion, the evidence must be considered in the light most favorable to the party against whom the directed verdict or the judgment n. o. v. is asked, that any conflict in evidence must be resolved in his favor and that every conclusion or inference that can be legitimately drawn therefrom in his behalf must be drawn. When this rule is applied here, we think that the case was one for the jury on the plaintiff's claim, as well as on the cross claim of the defendant J. P. Stevens & Company, and that there was error in entering judgment for the defendants in the face of the jury's finding of a verdict in the sum of $7,500 in favor of plaintiff.

There was evidence tending to show that plaintiff was a truck driver of long experience. On the morning of the collision he was driving an empty gasoline tractor-trailer and was proceeding west-wardly on highway 360 about four miles east of Amelia, Virginia. It was early in the morning and he was going to a roadside restaurant, known as "Dick's Place", to get his breakfast before driving to Richmond. Dick's Place was on the south side of the highway and, when he arrived opposite it, he drove to the right off of the hard surface and stopped to allow cars which were following him to pass, turning on his signaling device, which indicated by a light and arrow on his left front fender that he was making a left turn. After the cars had passed, he started across the hard surfaced highway, which was 22 feet wide, to Dick's Place on the other side. As he started he looked and saw the tractor-trailer of defendants approaching from the west around a long curve but at a distance of from 700 to 1000 feet. Although it was approaching at a rapid rate of speed, plaintiff thought that he had ample time to get across the highway in safety before it could traverse the intervening distance, and was crossing with both hands upon the wheel and with his attention directed towards Dick's Place, where one or more cars were parked which it was necessary for him to avoid. When the cab of his tractor-trailer had barely gotten off the hard surface, it was struck by the cab of defendants' tractor-trailer, which had swerved to the right to avoid striking his gasoline tank.

Defendants' tractor-trailer was evidently traveling at a high rate of speed, for it left skid marks upon the highway 321 feet long, and, when the evidence is viewed in the light most favorable to plaintiff, it appears that plaintiff was going slowly and that defendants' driver should have seen from a distance of 700 to 1000 feet that he was turning and might be heading towards Dick's Place. If defendants' driver had been keeping a proper lookout and had slowed down and brought his tractor-trailer under control at that time, there is no reason why he could not have avoided the collision. Instead of doing this, he first sounded his horn and proceeded some distance before using the full force of his brakes to bring his vehicle to a stop; and it was then too late to avoid the collision.

The questions involved in the case are pure questions of fact, — the rates of speed at which the respective motor vehicles were traveling, whether plaintiff exercised due care in looking for approaching cars before crossing the highway, whether defendants' driver was keeping a proper lookout and whether, in the exercise of ordinary care, he should have seen that plaintiff was in a dangerous situation from which he could not extricate himself in time to avoid the collision. There was conflict in some of the testimony bearing upon the answers to these questions and conflicting inferences could be drawn even where the testimony was not in conflict. With respect to the speed of the respective vehicles, this was a matter as to which not only the credibility but also the judgment of the witnesses had to be considered. With respect to the care required of plaintiff in making the crossing, there were questions as to where plaintiff looked, what he saw and whether he should have looked oftener. With respect to the care exercised by the driver, there were questions as to when he could first have seen plaintiff turning if he had been keeping a proper lookout, what precautions he should have taken to avoid the collision when he saw that plaintiff was turning and whether or not he took such precautions. The case was clearly one in which jury trial was required by express provision of the Seventh Amendment to the Constitution.

The courts are constantly urged in cases of this character to substitute their judgment for that of the jury on questions of fact; and the seductive argument is made that a conclusion of fact which appears to the court to be reasonable is so clear that reasonable men could reach no other. If this sort of reasoning is allowed to prevail, however, it means that the courts are substituting their judgment for that of the jury on fact questions in violation of the constitutional requirement. Where there is a determinative fact in a case which is either admitted or established by evidence so conclusive that reasonable men could entertain no doubt with regard to it, the court should, of course, direct a verdict as a matter of law; but this does not mean that the court should direct a verdict on a weighing of the evidence or on a decision as to what inferences to be drawn therefrom are the more reasonable. Questions of negligence or contributory negligence are ordinarily questions of fact involving the application of the rule of the reasonably prudent man to the facts of the case, and they are not to be decided by applying "rules of thumb" to the evidentiary facts and treating as conclusions of law what are in reality conclusions of fact. As was well said by Mr. Justice Lamar in Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485, quoted with...