Carman v. Harrison
| Decision Date | 30 June 1966 |
| Docket Number | No. 18241.,18241. |
| Citation | 362 F.2d 694 |
| Parties | Floyd K. CARMAN, Appellant, v. Velda HARRISON, Administratrix of the Estate of Lester Ray Harrison, Deceased, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
M. M. Maupin (of Maupin, Dent, Kay & Satterfield), North Platte, Neb., for appellant. C. J. Gatz, North Platte, Neb., on the brief.
James A. Lane (of McGinley, Lane, Mueller & Shanahan), Ogallala, Neb., for appellee. Thomas M. Shanahan, Ogallala, Neb., and James M. Knapp (of Tye, Worlock, Knapp & Tye), Kearney, Neb., on the brief.
Before VOGEL, Chief Judge, and MATTHES and GIBSON, Circuit Judges.
Velda Harrison, plaintiff-appellee herein, commenced this action against defendant-appellant Floyd K. Carman and defendant Howard E. Smith for damages sustained by reason of the wrongful death of her husband, Lester Ray Harrison, who died from injuries received in an automobile accident. The case was tried to a jury and resulted in a verdict in favor of the plaintiff against the two defendants for $50,963. At the same trial the jury rendered a $3,442.50 verdict in favor of defendant Carman on his crossclaim lodged against his co-defendant Smith. Smith did not appeal and the subsequent judgments entered against him are not in issue. Carman's appeal from the judgment rendered against him in favor of the plaintiff is thus the sole one with which we are here concerned. The parties will be referred to as they were in the court below. Diversity of citizenship and the amount sued for establish federal court jurisdiction.
At approximately 7:30 p. m. on the night of April 10, 1962, the decedent, Lester Ray Harrison, and one Orville Pederson1 were passengers in an automobile operated by defendant Carman.2 The three men were on U. S. Highway 6 heading east and were traveling the 17-mile distance from Imperial, Nebraska, where they had been working, to Wauneta, Nebraska, where Carman lived and where Harrison and Pederson were boarding. The night was dark and there was a mist or light fog in the air.
Approximately three-quarters of a mile east of Imperial, while traveling between 40 and 50 miles per hour, Carman's automobile met an oncoming car headed west. That car's lights caused a glare on defendant's windshield which he claimed sort of blinded him. Carman thought he reacted by lifting his foot off the accelerator. As soon as the oncoming car had passed, the occupants of Carman's automobile saw a truck-tractor and trailer loaded with grain parked in the middle of their lane for east-bound traffic. Carman applied his brakes but a few seconds later his automobile collided with the rear of the parked vehicle. A later investigation showed that skid marks of 48 feet 9 inches for the right tires and 54 feet 6 inches for the left tires were left by the Carman antomobile prior to the impact. Apparently Carman had not veered and he struck the back of the grain tractor-trailer "nearly dead center". The injuries sustained by the decedent, who was sitting in the right front seat of the automobile, resulted in his death. Carman and Pederson survived.
The tractor-trailer was owned and operated by defendant Smith. The rear of the tractor-trailer was 7 feet 10 inches wide. The grain box thereon had been painted with white enamel. The frame below the grain box was painted red. The drivers of two other eastbound cars testified that prior to the accident they had seen the parked tractor-trailer ahead of them in time to avoid running into it. However, the tractor-trailer was not seen by the occupants of these cars until they were within approximately four to eight car lengths thereof.
The tractor-trailer had stalled on the highway after its drive line had dropped down to the road surface because of sheared bolts. This caused the tractor-trailer to lose all of its power. It stopped at a point about two feet 9 inches south of the center line of the highway. At the time of the accident defendant Smith had abandoned the tractor-trailer to seek aid. He claims that before doing so he had turned on a flasher switch which operated lights on each front fender and the turn signals on the rear of the tractor-trailer; that he had placed out three reflector-type flares, one at the center of the truck just south of the center line of the highway and one each to the east and west of the tractor-trailer, about 35 paces therefrom; and that he had turned off his running lights. There is direct conflict of testimony among various witnesses as to whether or not there were flares or lights on or near the truck. After the accident the investigating sheriff found three reflector-type flares allegedly set out by defendant Smith.
At the time of the accident Carman was employed as a heavy equipment operator by one Harlan Smith, who is in no way related to the co-defendant, Howard E. Smith. The decedent and Pederson were employed by a partnership composed of Carl Whitney and Ernest Richter. This partnership had leased some heavy equipment to Harlan Smith. Pursuant to the leasing agreement, the decedent and Pederson were furnished to Harlan Smith as operators of the leased equipment. Carman and the decedent had known each other for quite a few years and had been co-employees on jobs for some period of time.
On the day of the accident the decedent and Pederson had been performing land leveling operations under the direction of Harlan Smith near Wauneta. This operation was shut down in mid-morning because of rain. Harlan Smith then decided to take the decedent and Pederson to Imperial in his car to help with the overhauling of one of his machines. Carman was already working on the machine at a shop in Imperial. Even though the decedent and Pederson received no salary or wages for the afternoon,3 they helped out by cleaning pistons and pins on Harlan Smith's machine. During the afternoon the decedent took a company pick-up truck, went to the airport and obtained parts, which he brought back to the shop.
About 6:30 p. m. that evening Harlan Smith, who decided not to return to Wauneta, asked Carman if he would take the decedent and Pederson back to Wauneta when he, Carman, went home. Harlan Smith also asked the decedent and Pederson if they minded returning to Wauneta with Carman. After stopping at a local cafe for a short time, the three men departed on their ill-fated trip. Carman was not paid mileage for the operation of his vehicle, nor was he paid any subsistence on April 10, 1962.
The evidence indicates that on March 23, 1962, prior to the accident, Carman had suffered an arc welder's burn to both of his eyes; that he was treated for such condition on the following day and again on March 26th; and that on March 30, 1962, he was further treated for the eye burns, at which time he told the attending physician that his right eye was more painful than his left. Medical testimony indicated that an eye burn of this type causes the eyes to be extremely sensitive to light. However, at trial Carman claimed not to have been conscious of having any difficulty with his eyes before the accident. On April 21, 1962, some three days after Carman had been released from the hospital following the accident, Dr. Bryce Shopp removed some sutures from a cut on Carman's head. Dr. Shopp, refreshing his memory by referring to Carman's clinical record, testified concerning a conversation that took place at that time:
The Nebraska "guest" statute, Rev. Stat.Neb. 1943 § 39-740 (Reissue of 1960), provides:
The District Court, Robinson, Chief Judge, refused to instruct the jury to the effect that the guest statute was applicable and that a finding of gross negligence would thus be necessary to support a verdict against the defendant Carman. In effect, then, the District Court held, as a matter of law, that the decedent was not a guest within the purview of the statute and that a finding of ordinary negligence would support a recovery. Carman's major contention on appeal is that this was error. He contends that the evidence unquestionably establishes that decedent was a guest, that only gross negligence would sustain a recovery against him, that the evidence, as a matter of law, failed to establish gross negligence, and that his motions for a directed verdict should have been sustained. In the alternative, Carman contends that the issue of plaintiff's decedent's status as passenger or guest should have been submitted to a jury and, at the very least, a new trial should be granted. We affirm the trial court.
In this diversity case we are bound by the law of the State of Nebraska and the interpretations thereof by its Supreme Court. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The Nebraska guest statute has been the...
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