Conn v. Young

• Decision Date: 15 June 1959
• Docket Number: No. 146,Docket 25197.,146
• Citation: 267 F.2d 725
• Parties: John CONN, Administrator of the Estate of Delbert Richardson, Plaintiff-Appellee. v. Kenneth YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

267 F.2d 725 (1959)

John CONN, Administrator of the Estate of Delbert Richardson, Plaintiff-Appellee. v. Kenneth YOUNG, Defendant-Appellant.

No. 146, Docket 25197.

United States Court of Appeals Second Circuit.

Argued March 3, 1959.

Decided June 15, 1959.

COPYRIGHT MATERIAL OMITTED

James L. Oakes, Brattleboro, Vt. (Gannett & Oakes, Brattleboro, Vt., on the brief), for plaintiff-appellee.

Henry F. Black, White River Junction, Vt. (Peter P. Plante, White River Junction, Vt., on the brief), for defendant-appellant.

Before MEDINA and HINCKS, Circuit Judges, and MATHES, District Judge.^*

MEDINA, Circuit Judge.

On July 21, 1956, at about 6:30 p. m. an automobile driven by Delbert Richardson, plaintiff's decedent, swerved from the road, hit an elm tree and turned over, coming to rest on its right side, facing in the opposite direction to its original course. The truck of the defendant, Kenneth Young, following close behind, collided practically head-on with the overturned vehicle. Young appeals from the judgment entered on the verdict of $25,000 against him.

Disregarding Young's exculpatory version of what occurred, there was evidence from which the jury might have found the following facts favorable to plaintiff. The two men, Richardson and Young, had spent this Saturday afternoon drinking in Ray's restaurant in Brattleboro, Vermont, both men having consumed a considerable quantity of whiskey. Later in the afternoon they met again with their wives in Young's home in Hinsdale, New Hampshire. A discussion ensued about the relative merits and power of their respective cars and a bet of $5 was made, to be won by the first one to reach the monument on the way to Brattleboro. As the wives protested, the bet was called off and the money returned by the stakeholder. Later in the afternoon Richardson left in his 1948 Chevrolet sedan to go to Brattleboro to bring back the children and "right afterwards" Young and his brother got in Young's 1937 Ford pickup truck and departed at high speed to take Young's brother back to Brattleboro.

Shortly thereafter Richardson arrived at a curve on New Hampshire Route 119, a "mile or two" from the Young residence. The place is called Lipscomb Hollow. From the top of a hill the road curves to the right in the direction Richardson was driving, and then ascends to the top of another hill. The road was a tar surface road. As Richardson started down the hill to make the curve at a high rate of speed his car got out of control, swerved to the left, past the entire surface of the road, and knocked over two guard posts and a mail box on the other side of the road. It finally hit a large elm tree, bounced to the right, turned over and came to a stop in the lane of the roadway in which Richardson had been driving to Brattleboro, but turned around facing the direction from which he had been coming. There it lay, on its right side when Young crashed into it head-on.

The distance from the top of the hill to the elm tree was 200 to 300 yards. The swerve mark showing the path of the Richardson car, as it crossed the white line separating the two lanes of the highway, measured 228 feet back from the elm tree. The tire marks made when Young applied his brakes covered a distance of only 20 or 21 feet and they led from a point just across the white line to the place where the cars were found after the accident, some 62 feet crosswise from the elm tree.

As Young reached the top of the hill he saw and recognized Richardson's car ahead of him; he saw Richardson swerve to the left in a cloud of dust, apparently out of control; he had only mechanical rather than hydraulic brakes, and used them, and he "tried to pass on the right to avoid" hitting the Richardson car. The distance separating the two cars as Young came over the brow of the hill is a matter of inference.

In his complaint plaintiff alleged two clear and unambiguous bases for recovery, in the alternative: (1) that Young "wilfully, wantonly and recklessly" overtook the decedent, Richardson, and forced him "off the road and out of control"; and (2) that after Young observed Richardson "in a position of peril from which he was unable to extricate himself" Young had "a last clear chance to avoid the collision" but under the circumstances failed to exercise reasonable care to avoid it. No amendment of either of these claims for relief was sought or granted during the trial. The jury found "defendant is liable as the plaintiff in his complaint has alleged" and fixed the damages arising out of Richardson's death in the amount of $25,000.

Jurisdiction is based upon diversity of citizenship and the accident occurred in New Hampshire; accordingly the substantive aspects of the case are governed by New Hampshire law and rulings on the admissibility of evidence are governed by the law of the forum, Vermont. See Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Wells v. Simonds Abrasive Co., 1953, 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211; Sampson v. Channell, 1 Cir., 1940, 110 F.2d 754, 128 A.L.R. 394, certiorari denied, 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed. 1415; Brown v. Perry, 1931, 104 Vt. 66, 156 A. 910, 77 A.L.R. 1294; Fed.R.Civ.Proc. 43(a), 28 U.S.C.A.

As there was not the slightest doubt that Richardson was driving at a dangerous rate of speed and that he had consumed an ample quantity of liquor, plaintiff's counsel in his opening to the jury very wisely conceded that Richardson was guilty of contributory negligence. But this did not put plaintiff out of court as the negligence of the injured person does not prevent recovery for a wilful, wanton or reckless injury, Donahoo v. Illinois Terminal R. R., Mo.1957, 300 S.W.2d 461; Long v. Foley, 180 Kan. 83, 299 P.2d 63; Bryan v. Southern Pacific Co., 1955, 79 Ariz. 253, 286 P.2d 761, 50 A.L.R.2d 1; Adkisson v. City of Seattle, 1953, 42 Wash.2d 676, 258 P.2d 461; and the theory of the last clear chance doctrine applies even if the injured person negligently placed himself in a position of peril from which he could not extricate himself. Naramore v. Putnam, 1954, 99 N.H. 175, 106 A.2d 568; Mack v. Hoyt, 1947, 94 N.H. 492, 55 A.2d 891; Lee v. Hustis, 1920, 79 N.H. 434, 111 A. 627. There is, however, considerable authority to support the view that contributory recklessness having a causal relation to an accident is an effective bar to an action based on recklessness. See Gulf, M. & O. R. Co. v. Freund, 8 Cir., 1950, 183 F.2d 1005, 21 A.L.R.2d 729, certiorari denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654; Elliott v. Philadelphia Transp. Co., 1947, 356 Pa. 643, 53 A.2d 81; Hinkle v. Minneapolis, A. & C. R. Ry., 1925, 162 Minn. 112, 202 N.W. 340, 41 A.L.R. 1377; Osteen v. Atlantic Coast Line R. Co., 1922, 119 S.C. 438, 112 S.E. 352; Moore v. Lindell Ry., 1903, 176 Mo. 528, 75 S.W. 672. The record does not disclose that this point was raised. But it is clear that plaintiff's claim was not based on ordinary negligence and that, on the last clear chance phase of the case any negligence of Young, prior to his discovery of Richardson's peril, was not material.

We are asked to reverse the judgment on the following points together with some others that we find it not necessary to discuss: (1) that the evidence did not warrant any recovery whatever against Young; (2) that various and sundry errors were committed in the instructions to the jury, to which exceptions were noted, and in refusals to instruct as requested; (3) that certain opinion evidence was allegedly improperly received over objection; and (4) that no recovery in excess of $15,000 should have been permitted in any event.

Several features of the case should be noted by way of preliminary. At no time did defendant move to withdraw from the consideration of the jury the claim for relief alleged in the first count of the complaint to the effect that Young wilfully, wantonly and recklessly forced Richardson off the road. For some reason not clear to us, but probably because the subject cuts both ways, there is little or no discussion or citation of authorities in the briefs of either of the parties on the legal bearing on the case of the issue of whether or not either or both of the participants were racing at the time, and whether or not this was the sole cause of the accident.¹ Perhaps some requests for instructions on this subject were submitted to the trial judge by either or both of the parties, but we do not find them in the record before us. We think it too clear for reasonable debate that the evidence warranted an inference that either or both of the participants were racing, despite defendant's claim to the contrary.

We find no merit in the argument that a verdict should have been directed in defendant's favor. While the record is completely devoid of any evidence to support the claim that Young forced Richardson off the road, and, in the absence of some application to amend this claim, it should have been withdrawn from the consideration of the jury, there was sufficient proof to sustain the claim for recovery on the basis of the last clear chance doctrine. It was for the jury to say whether Young had an actual awareness of the fact that Richardson was in a position of peril from which he could not extricate himself and whether after such awareness due care required and time afforded an opportunity for saving action. See Lincoln v. Tarbell, 1953, 98 N.H. 153, 95 A.2d 778; Mack v. Hoyt, supra; Frost v....