Cox v. Maddux

• Decision Date: 24 June 1966
• Docket Number: No. LR-65-C-184.,LR-65-C-184.
• Citation: 255 F. Supp. 517
• Parties: John William COX, Plaintiff, v. Roy MADDUX et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

255 F. Supp. 517

John William COX, Plaintiff, v. Roy MADDUX et al., Defendants.

No. LR-65-C-184.

United States District Court E. D. Arkansas, W. D.

June 24, 1966.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Carl Langston, Little Rock, Ark., for Cox and Melton.

Frank Lady, Jonesboro, Ark., and Gannaway & Darrow, Little Rock, Ark., for Roy Maddux.

James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., for United States.

MEMORANDUM OPINION

HENLEY, Chief Judge.

This personal injury-wrongful death action has been tried to the Court without a jury. This memorandum incorporates the Court's findings of fact and conclusions of law.

About eight o'clock in the morning of August 21, 1965, a pick-up truck, the property of the United States Navy, and being operated on Government business by Naval personnel, collided with an automobile owned and operated by Rev. Roy C. Maddux and in which his wife, Sylvia Douglas Maddux, was riding. As a result of the accident Mrs. Maddux received fatal injuries, and Mr. Maddux was also injured. Plaintiff, John William Cox, an enlisted man in the Navy who was riding in the truck, sustained severe personal injuries and James Darrell Melton, the driver of the truck was slightly injured. Both vehicles were damaged; indeed the Maddux car was substantially demolished.

The collision occurred at a point on Interstate Highway 40 just east of the Lakewood Overpass in the eastern outskirts of the City of North Little Rock, Pulaski County, Arkansas. At the point of the collision Interstate 40 is a divided highway with three lanes of traffic in each division. The two divisions are separated by a grass median strip; on each side of each division is a wide asphalt paved shoulder. The road is a high speed, access controlled highway; the speed limits at the scene of the accident were a minimum speed of 45 miles per hour and a maximum speed of 70 miles per hour.

The collision occurred in the northernmost traffic lane for eastbound traffic, and the Government truck struck the Maddux car from the rear. At the time of the collision the Government truck was being driven to Jonesboro. Mr. and Mrs. Maddux were returning to their home in Walnut Ridge following a visit with their daughter who lives in Texas.

The morning of August 21, 1965, was clear and bright; the highway and shoulders were dry, and in the vicinity of the accident the road was perfectly straight and visibility east and west was practically unlimited. However, for some reason the occupants of the truck did not observe the Maddux car until they were in such proximity to it that the collision could not be avoided. At the moment of impact the truck was going about 62 miles per hour.

Mr. and Mrs. Maddux were knocked unconscious, and Mrs. Maddux never regained consciousness. As a result of the trauma which he sustained Mr. Maddux has developed retrograde amnesia and is unable to remember the events leading up to the accident or to describe the accident itself. In view of that inability on his part and in view of the fact that the Naval personnel did not see the Maddux car until just before they hit it, together with the further fact that there were no other eye witnesses to the accident, the location and movements of the Maddux car prior to its ultimate perception by Melton are highly uncertain and sharply disputed matters.

The litigation was commenced in the Circuit Court of Pulaski County, Arkansas, as a suit by Cox against Maddux; in that action plaintiff alleged that the accident was proximately caused by the negligence of Maddux; Maddux answered and denied liability. Maddux also filed a counterclaim against Cox and a third party complaint against Melton. In that pleading Maddux alleged that the accident was proximately caused by negligence on the part of Melton and Cox, and that the alleged negligence of the former was imputed to the latter.

When the pleading last mentioned was filed, the Government removed the case here as authorized by 28 U.S.C.A. § 2679(b)-(d). In due course an order was entered substituting the Government for Melton and Cox as a party adversary to Maddux. Thereafter, Maddux in his capacity as executor of his wife's estate filed an intervention seeking to recover damages on account of the death of his wife. Originally, he sought to recover both for the benefit of her estate and for the benefit of himself and the two adult children of Mrs. Maddux, namely, Dale Maddux and Mrs. Faye Gonzales.

After the case was removed, numerous pleadings were filed. It would serve no useful purpose to list or abstract all of those pleadings. The Court will content itself with setting out at this point the claims with which it is concerned; those claims are as follows:

1. The principal claim of Cox against Maddux.

2. The individual claim of Maddux against the Government, including the alternative claim of Maddux for contribution should he be held liable to Cox.

3. The claim of Maddux as executor of his wife's estate for damages for the benefit of himself and the two children, the claim for damages for the benefit of the estate of the deceased having been abandoned.

4. The claim of the Government against Maddux for damages to the Government truck.

5. The derivative claim of the Government for reimbursement for the medical and hospital expenses of Cox. 42 U.S.C.A. § 2651 et seq.

6. The alternative claim of the Government for contribution from Maddux individually should the Government be held liable to Maddux as executor of his wife's estate.

7. The claim of Melton against Maddux for damages which Melton claims to have sustained as a result of his injuries.

With regard to blame for the accident, the Court finds ultimately from a preponderance of the evidence that the accident and the consequences thereof were proximately caused by the concurrent negligence of Melton and Maddux; the Court is unable to find that the one was more negligent than the other and considers that their negligent acts and omissions proximately contributing to the accident were of equal degree. The result of this ultimate finding is that Melton cannot recover herein against Maddux, and that Maddux individually cannot recover for his own injuries and damages or for his own benefit in the death action. See in this connection the Arkansas Comparative Negligence Statute, Ark.Stats., Ann., §§ 27-1730.1 and 27-1730.2. Nor can the Government recover anything on account of damages to the truck since the negligence of Melton is imputed to the Government.

As far as the negligence of Melton is concerned, it should be said first that at the commencement of the trial counsel for the Government conceded that Melton was at least in some degree negligent. The Court finds that such concession was properly made, and the Court finds from a preponderance of the evidence that Melton negligently failed to keep that lookout for other vehicles on the highway which the law requires.

The lookout required is that which a person of ordinary prudence would have kept in the circumstances. One of the circumstances to be considered here is the speed of the Government truck. While that speed was not excessive and was well within the posted maximum speed limit, it was a high rate of speed. A person who is driving a motor vehicle at 62 miles an hour down an open highway is not required to keep his eyes glued to the road ahead of him every second that the vehicle is in motion; he may properly use his mirrors to keep advised of traffic conditions behind and to the sides of him; indeed, the general duty to keep a lookout includes the duty to keep a reasonably prudent and adequate lookout to the rear. Nor is it necessarily negligent for a driver to glance aside momentarily to speak to a passenger or for some other purpose.

However, a driver operating his vehicle at the speed indicated must realize that he is going down the road at a rate of more than 88 feet per second, and the lookout which he must keep down the road in front of him must be commensurate with that speed. If he has occasion to glance away from the highway in front for any purpose, he must before doing so look far enough down the road and properly evaluate what he sees so that his glancing away will not result in injurious or fatal consequences. Melton either did not look far enough ahead or did not properly evaluate what was there to be seen; in either case he was negligent.

The principal difficulty which the Court has with this case is presented by the question of whether and to what extent Maddux was guilty of negligence which was a proximate cause of the accident. Maddux, of course, was required to exercise ordinary care for his own safety and for the safety of others on the highway. The precise nature of his duty in that respect would depend in part upon where he was and what he was doing immediately prior to the time that he was finally perceived by Melton almost at the instant of collision. Unfortunately, neither side has been able by evidence to enlighten the Court on those points.

The theory of Maddux, based largely on the opinion evidence of two members of the Arkansas State Police Department who investigated the wreck, is that he was proceeding slowly along the highway in an easterly direction and was about to turn out of the traffic lane and onto the left hand shoulder of the road when he was struck.

The Government contends, on the other hand, that Maddux had driven his car off the highway onto the shoulder and was returning or had returned to the highway when the collision occurred. In support of that theory counsel for the Government attempted to draw inferences, based on natural laws of physics, from the condition of the vehicles after the collision, from certain marks on the highway, and from the positions of the respective vehicles after they came to rest.

The Court doubts that the opinion evidence of the State policemen was admissible, but even if it was, the Court is not convinced by it;...