Christensen v. Trotter, 11964.

• Decision Date: 30 November 1948
• Docket Number: No. 11964.,11964.
• Citation: 171 F.2d 66
• Parties: CHRISTENSEN v. TROTTER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

171 F.2d 66 (1948)

CHRISTENSEN v. TROTTER et al.

No. 11964.

United States Court of Appeals Ninth Circuit.

November 30, 1948.

Fred C. Struckmeyer, of Phoenix, Ariz., for appellant.

Hildebrand, Bills & McLeod and D. W. Brobst, all of Oakland, Cal., for appellees.

Before HEALY, BONE, and ORR, Circuit Judges.

HEALY, Circuit Judge.

Appellees Trotter and Rayburn, respectively the fireman and engineer on the second engine of a Santa Fe train, were injured when the train collided with a truck standing unattended on the railroad track. They sued appellant, the owner of the truck, and were awarded damages. The appeal challenges certain of the instructions and the propriety of a ruling on evidence offered by way of impeachment.

The incident occurred near Kingman, Arizona, at a place where the highway parallels the railroad track immediately on the north at an elevation some thirteen feet higher than the track. Appellant's driver had paused to get a cup of coffee at a small restaurant located on the north side of the highway. There was evidence that the truck and its attached trailer were parked in a jackknife position in front of the restaurant, so headed that if the vehicle started from any cause to roll it would move across the highway in a southwesterly direction and down the sloping ground to the point where it came to rest upon the track. Tire marks were found tending to substantiate the belief that such was in fact the course the vehicle took. No witness saw the truck in motion, however; and the driver testified that he had parked it at an oil station some hundred feet or more west of the restaurant where he went to get his coffee. He further testified that at the time of parking he had turned the key in the lock, set the brakes, and put the car in gear. He was in the restaurant, he said, about ten minutes, not more than fifteen, and when he came out the truck was gone. The accident on the track was already a thing of the past.

1. The following instruction was given over objection:

"From the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference pre-ponderates over contrary evidence, it warrants a verdict for the plaintiffs. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that he did, in fact exercise ordinary care and diligence, or that the accident occurred without being proximately caused by any failure of duty on his part.

"The instruction just given may appear to constitute an exception to the general rule, that the mere happening of an accident does not support an inference of negligence. The instruction, however, is based on a special doctrine of the law which may be applied only under special circumstances, they being as follows:

"First: The fact that some certain instrumentality, by which injury to the plaintiffs was proximately caused, was in the possession and under the exclusive control of the defendant at the time the cause of injury was set in motion, it appearing on the face of the event that the injury was caused by some act or omission incident to defendant's management.

"Second: The fact that the accident was one of such...