Craighead v. Missouri Pac. Transp. Co.

• Decision Date: 02 April 1952
• Docket Number: No. 14475.,14475.
• Parties: CRAIGHEAD et al. v. MISSOURI PAC. TRANSP. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

195 F.2d 652 (1952)

CRAIGHEAD et al. v. MISSOURI PAC. TRANSP. CO.

No. 14475.

United States Court of Appeals Eighth Circuit.

April 2, 1952.

Tom W. Campbell, Little Rock, Ark. (Kenneth C. Coffelt, Little Rock, Ark., on the brief), for appellants.

John B. Thurman, Little Rock, Ark. (Barber, Henry & Thurman, Little Rock, Ark., on the brief), for appellee.

Before GARDNER, Chief Judge, and RIDDICK and COLLET, Circuit Judges.

COLLET, Circuit Judge.

The only question presented on this appeal is whether there was sufficient evidence of negligence to support the jury's verdict for damages resulting from a highway accident. After verdict the trial court carefully considered the evidence and concluded that there was no substantial evidence upon which the jury's verdict could be based and sustained a motion for a judgment in favor of defendant notwithstanding the verdict. The trial court further ordered that in the event the judgment notwithstanding the verdict was reversed, that defendant's alternative motion for a new trial was granted because of error in an instruction given the jury.

At about 1 o'clock p. m. on August 19, 1950, a clear, hot, dry day, Mrs. Cash and Mrs. Craighead were driving south on an eighteen- to twenty-foot wide concrete highway a few miles north of Little Rock, Arkansas. Mrs. Cash was driving the car. Mrs. Craighead, on account of whose death this action was brought, was a passenger. The car was traveling 35 or 40 miles an hour. Just after it came around a slight curve, the two right wheels of the car ran off of the right or west side of the pavement. It continued on south with the two right wheels on the right shoulder of the highway for a distance estimated by different witnesses at from 20 to 50 feet. The car (a 1950 Tudor Ford Sedan) then cut diagonally across the pavement to the east side of the highway and ran off of the pavement onto the shoulder on the east side. It then ran south on the east side shoulder 32 feet, where it struck an electric power line pole, breaking the pole. It then continued south 27 feet on the east shoulder where it and defendant's 29-passenger bus collided. Mrs. Cash and Mrs. Craighead were the only occupants of the car. Both were killed. The distance from the point where the car first went off of the pavement on the right or west side of the highway, on a straight line, to the point of collision was 282 feet. The defendant's bus was traveling north from Little Rock on its right (east) side of the highway when the driver saw the car first run off of the west side of the pavement. He realized that the action of the car was unusual and states that he watched it carefully from that time. His testimony of the distance he was then from the car and what he did thereafter, in a number of respects corroborated by several of the 25 passengers on the bus, would exonerate him from any negligence in the operation of the bus. But since after a verdict we must consider the evidence in the light most favorable to the verdict, we relate the facts in that light. Those facts are that when the car first went off of the pavement on the west side, the bus was from eight hundred to a thousand feet south of it, traveling at a speed of about 55 miles per hour. That it continued north with speed unabated until it was 45 feet south of the point of collision. At that point the driver applied the brakes and immediately swerved the bus to the east with the right wheels thereof off of the pavement and onto the east shoulder. There were skid marks on the shoulder showing the application of the brakes at a distance of 45 feet south of the point of collision. The bus could have been stopped in a distance of 75 to 100 feet, traveling at a speed of 45 miles per hour¹, in 85 to 110 feet at 50 miles per hour, and in 95 to 125 feet at 55 miles per hour², from the time the brakes were applied. Including the "reaction" time, or the time intervening after the driver saw the situation which showed the need to stop and the time before the brakes were actually applied, the bus could have been stopped in 200 feet traveling at 55 miles per hour. The bus was approximately eight feet wide. The right front fender of the car and the right front end of the bus collided at a point five feet nine inches east of the east side of the pavement. After the collision the bus traveled on north, pushing the car ahead of it, for a distance of 96 feet, where it came to a stop in the middle of the pavement with the right front wheel of the bus and the right front wheel of the car on the center line.

One of the assignments of negligence was that after the driver of the bus observed the unusual action of the car when it first went off of the pavement he should have brought the bus under control and stopped it before the collision.

The evidence that the bus was traveling at a speed of 55 to 60 miles per hour, that it was from 800 to 1000 feet south of the car when the latter first ran off of the west side of the pavement, the evidence that the driver of the bus did not apply the brakes until a few feet south of the point of collision, and other facts damaging to defendant are found in the testimony of one of plaintiffs' witnesses, Befort, who, was one of the passengers on the bus and has an action pending against the defendant for personal injuries received in the accident. Defendant argues that her testimony was inconsistent with the physical and mathematical facts and should not constitute substantial evidence to support the verdict. We have analyzed the facts and do not find that to be the case. On the contrary, some of the mathematical facts corroborate her in important respects.

On the question of the speed of the bus it is to be observed that the skid marks of the bus on the east shoulder began 45 feet south of the point of collision. The testimony is not contradicted that the bus could have been stopped within 125 feet after the application of the brakes, yet it traveled 141 feet by actual measurement from the point the brakes were applied to where it stopped, pushing the car ahead of it for the last 96 feet. There was testimony of a disinterested witness living close by that a depression from six to ten feet long, four or five feet wide, and two or three inches deep was dug in the concrete or asphalt pavement where it appeared that something, presumably the car, had been shoved along the pavement at the point where the bus and the car came to a stop. These facts would justify the conclusion that if, as the driver of the bus testified, and the skid marks indicated, the brakes were applied 45 feet from the point of impact and the bus could have been stopped in 125 feet at 55 miles per hour, the bus was traveling at a speed in excess of 55 miles per hour.

On the question of the distance between the bus and the car at the time the car first went off of the pavement on the west side, fixed by plaintiffs' witness at from 800 to 1000 feet, and by the bus driver at from 125 to 150 feet, — if the bus driver's estimate that the speed of the bus was 50 miles per hour³ at the time he swerved it onto the east shoulder was accepted, and the defendant's evidence that the speed of the car at the time it first ran off of the west side of the pavement was 40 miles per hour was accepted by the jury⁴, it took the car 4.67 seconds to travel 282 feet and reach the point of collision, assuming (in derogation of plaintiffs' case) that the car maintained that speed while it ran down the west side of the highway with two wheels off the pavement, while it swerved diagonally across the pavement leaving noticeable skid marks in its path, while it ran south on the east shoulder for 32 feet, struck an electric power line transmission pole, breaking it off, and then for another 27 feet on the east shoulder. In that 4.67 seconds, the bus traveling at 50 miles per hour (if it maintained that speed)⁵ would have...