Burleson v. Canada, 8196.
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Writing for the Court | SOBELOFF, , SOPER, Circuit , and FIELD |
| Citation | 285 F.2d 264 |
| Parties | Letha C. BURLESON, Appellant, v. I. S. CANADA and Mrs. C. C. Canada, Individually and as Partners, d/b/a Canada Lumber Company, and James D. McCrae, d/b/a McCrae Trucking Company, Appellees. |
| Docket Number | No. 8196.,8196. |
| Decision Date | 13 January 1961 |
285 F.2d 264 (1961)
Letha C. BURLESON, Appellant,
v.
I. S. CANADA and Mrs. C. C. Canada, Individually and as Partners, d/b/a Canada Lumber Company, and James D. McCrae, d/b/a McCrae Trucking Company, Appellees.
No. 8196.
United States Court of Appeals Fourth Circuit.
Argued January 9, 1961.
Decided January 13, 1961.
Kermit S. King, Columbia, S. C. (Edens, Hammer & Glenn, and William E. Chandler, Jr., Columbia, S. C., on brief), for appellant.
Heyward E. McDonald, Columbia, S. C. (Turner, Padget, Graham & McDonald and R. E. Harrell, Columbia, S. C., on brief), for appellees.
Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and FIELD, District Judge.
SOPER, Circuit Judge.
This suit for personal injuries comes before us on an appeal by the plaintiff from an order of the District Judge whereby a motion of the plaintiff for summary judgment was denied and a motion of two of the three defendants for summary judgment was granted, and the case as to the third defendant was retained on the docket for trial. In our opinion the appeal must be dismissed as premature.
The motions for summary judgment were considered by the District Judge upon the allegations in the complaint and in certain affidavits filed by the parties which disclosed the following state of facts. James D. McCrae was employed by I. S. Canada and Mrs. C. C. Canada, doing business as the Canada Lumber Company, to haul a load of lumber on his trailer truck from their place in Kingstree to Charleston, South Carolina. The vehicle was loaded by the employees of the lumber company and thence, driven by McCrae, started on its way to Charleston. When it reached a point five miles from Kingstree a valve on a piston of the motor broke and the vehicle was unable to proceed. Thereupon McCrae parked the truck by the side of the road, installed certain warning signals, and left the scene. Thereafter an automobile in which Letha C. Burleson, the plaintiff, was riding on the highway with her husband collided with the parked truck and the plaintiff was injured. It is asserted that the defendant Canadas negligently overloaded the truck so that it broke down on the highway and that McCrae was negligent in driving the overloaded truck and in leaving it unattended on the highway in the path of other vehicles without sufficient warning.
Summary judgment in favor of the Canadas was based on the theory that even if they were negligent in overloading the truck they were not liable for the plaintiff's injuries, since the accident was not caused by their negligence but by the intervening negligence of McCrae, in which the Canadas did not join, in abandoning the truck on the highway in the manner described.
Under these circumstances it is obvious that the plaintiff's appeal...
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...Federal Practice and Procedure, Rules Edition, Section 1242; Valdosta Livestock Company v. Williams, 4 Cir., 316 F.2d 188; Burleson v. Canada, 4 Cir., 285 F.2d 264; Doehler Metal Furniture Company, Inc. v. United States, 2 Cir., 149 F.2d 130; Jones v. St. Paul Fire and Marine Insurance Comp......
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Burleson v. Canada
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