Cronenberg v. United States

• Decision Date: 18 August 1954
• Docket Number: No. 442 & 443.,442 & 443.
• Citation: 123 F. Supp. 693
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: F. A. CRONENBERG, Administrator of the Estate of Fritz Albert Cronenberg, Jr., Plaintiff, v. UNITED STATES of America, Defendant, v. R. Fred Hunt and Eleanor K. Hunt, Third-Party Defendants. Paul V. BULLUCK, Jr., by his Guardian ad Litem, Paul V. Bulluck, Plaintiff, v. UNITED STATES of America, Defendant, v. R. Fred Hunt and Eleanor K. Hunt, Third-Party Defendants.

123 F. Supp. 693

F. A. CRONENBERG, Administrator of the Estate of Fritz Albert Cronenberg, Jr., Plaintiff, v. UNITED STATES of America, Defendant, v. R. Fred Hunt and Eleanor K. Hunt, Third-Party Defendants.

Paul V. BULLUCK, Jr., by his Guardian ad Litem, Paul V. Bulluck, Plaintiff, v. UNITED STATES of America, Defendant, v. R. Fred Hunt and Eleanor K. Hunt, Third-Party Defendants.

Nos. 442 & 443.

United States District Court E. D. North Carolina, Wilson Division.

August 18, 1954.

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Battle, Winslow & Merrell, Rocky Mount, N. C., for plaintiff.

Julian T. Gaskill, U. S. Atty., Goldsboro, N. C., Thomas F. Ellis, Asst. U. S. Atty., Raleigh, N. C., for defendant and third-party plaintiff. Thorp & Thorp, Rocky Mount, N. C., Lucas, Rand & Rose, Wilson, N. C., for third-party defendants.

GILLIAM, District Judge.

These cases were consolidated for trial and heard without a jury.

No. 442 is an action brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., to recover damages for the wrongful death of plaintiff's intestate, Fritz Cronenberg, Jr., which resulted from a collision on the night of March 25, 1953, between an Oldsmobile being driven by a minor, Douglas Hunt, and a stalled mobile Highway Post Office, owned and operated by the Government.

No. 443 is an action brought also under the Tort Claims Act by the guardian ad litem of Paul Bulluck, Jr. for personal injuries to his ward sustained in the same collision.

In both 442 and 443, the parents of Douglas Hunt having been brought in as third-party defendants, the Government by cross-complaint asserted that the death and injuries mentioned were caused solely by the negligence of the driver of the Oldsmobile and that, in any event, the parents are liable to it by way of contribution as joint tort-feasors. Neither the plaintiff in No. 442 nor the plaintiff in No. 443 asserts any cause of action against the third-party defendants.

These facts are found from the admissions in the pleadings, the stipulations and the evidence offered:

On the night in question a mobile Highway Post Office, owned by the United States, was in transit for distribution and delivery of mail from Norfolk, Virginia, to Raleigh, North Carolina. The vehicle was thirty feet in length, eight feet in width, ten and a half feet in height, and weighed over 20,000 pounds; it was manned by a driver, an operator in charge, and an assistant mail clerk. Between 8:00 and 9:00 o'clock p. m. (E.S. T.), two miles east of Rocky Mount, N. C., on State Highway No. 64, a much travelled black-top road twenty feet wide, the Post Office was stopped at a roadside store on account of motor trouble, and there a telephone call was made to the transfer point in Rocky Mount to request aid; before aid arrived the driver was able to start the motor and he proceeded toward Rocky Mount, but after a hundred or more yards there was a recurrence of the motor trouble and the motor completely failed; the driver stopped on the right of the hard surface with the front right outside dual wheel on the shoulder, the balance of the vehicle upon the hard surface, almost entirely blocking the west bound lane; when this stop occurred it was 9:10 o'clock p. m.; the weather was fair and the road was straight for more than one-half mile both to the east and to the west.

The State Highway Commission had been doing some construction work on the road for the entire distance of 15 miles from Rocky Mount to Tarboro, and there were lighted flares along the northern shoulder at various points; to the north of the hard surface there was a shoulder about nine feet in width beyond which there was a shallow drain ditch from which some soil had been pulled up, leaving a ridge of loose dirt between the ditch and the hard surface. Except for the ridge of loose dirt, the shoulder was firm.

When it was found that the vehicle could not proceed further, glass reflectors upon metal stands about 15 inches high were put out and later three flares or smudge pots were lighted and put out, one forty-five feet to the west on the center line, one forty-five feet to the east on the center line, the third south and just opposite the vehicle near the center line. The reflectors and the flares to the east and west were set only a few inches apart.

At about 9:45 o'clock p. m., shortly after the warning flares had been displayed, an Oldsmobile Sedan owned by the third-party defendant, Eleanor K. Hunt, and being operated by Douglas Hunt, the minor son of third-party defendants, approached the stalled Highway Post Office from the east; with him were Fritz Albert Cronenberg, Jr. and Paul V. Bulluck, Jr., all three sitting on the front seat; the right front corner of the Oldsmobile struck the left rear corner of the Highway Post Office, causing fatal injuries to Cronenberg and serious and permanent injuries to Bulluck.

Paul Bulluck, Jr. testified that he could remember nothing of what occurred after leaving Tarboro on the return trip to Rocky Mount; Douglas Hunt was not called as a witness; no witness testified with regard to the speed of the Oldsmobile as it approached the stalled vehicle, but the evidence shows that it was being operated on the west lane; there is evidence as to tire marks made by the Oldsmobile, and the nature and extent of the damages to the two vehicles, but I am unable to determine the speed of the Oldsmobile from this evidence.

Each plaintiff contends that the death and injuries, respectively, resulted from the negligence of the servants of the United States in (1) blocking the west lane of travel without displaying warning flares as required by North Carolina law, and (2) in not having run the Highway Post Office off the paved portion onto the dirt shoulder to the north.

In both cases the United States contends (1) that its servants were not negligent, (2) that, in any event, the sole proximate cause of the collision was the negligence of the driver of the Oldsmobile, which insulated its negligence, if any, from liability, and (3) that Cronenberg and Bulluck were guilty of contributory negligence in voluntarily riding with Hunt whom they knew to be a fast and reckless driver.

The United States contends, also, that if it is liable the third-party defendants are liable to them by way of contribution as joint tort-feasors, under the family purpose doctrine; while the third-party defendants contend that (1) the evidence does not establish negligence on the part of their minor son, Douglas Hunt, and (2) that, assuming such negligence, they are not liable for that on this particular occasion their son was using the Oldsmobile as a simple bailee and not within the scope of the family purpose doctrine as applied in North Carolina.

The plaintiffs, as basis for their position that the Government's servants in charge of the Post Office were negligent, rely upon N.C.G.S. Section 20-161, which they ask the Court to find was violated in two respects.

Section 20-161 provides: "No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway" (emphasis supplied); "* * * Provided further that in the event that a truck * * * be disabled upon the highway that the driver of such vehicle shall display, not less than two hundred feet in the front and rear of such vehicle, a warning signal; that during the hours from sunup to sundown a red flag shall be displayed, and after sundown red flares or lanterns."

As to the failure of the Government's servants to remove the vehicle from the paved portion of the highway, I find that the evidence by its preponderance does not establish this as a negligent act. It has been held that the word "practicable" as used in such a statute is not synonymous with "convenient"; Lagere v. Tatro, 315 Mass. 141, 52 N.E. 2d 11; to be sure it is not to be construed as meaning "possible". No helpful decision by the North Carolina court has been found. The evidence does not establish that adequate motive power, either from the motor itself or the electric starter, was available for propelling the vehicle onto the shoulder after the motor stalled; nor does the evidence establish that the necessary manpower was present. It was evident to the operators of the Post Office that the highway was under construction and that flares had been placed along the north of the highway, indicating that the shoulder to the north was involved in the construction work. They might well have hesitated to drive a heavy vehicle upon that shoulder without having knowledge of the existing conditions. It may be that, in the light of conditions subsequently found to exist, the vehicle could have been safely run off the paved portion of the highway onto the shoulder, but this gets into the realm of "hindsight", where we so frequently have our errors of judgment to plague us; as the situation appeared to the driver during the last few moments when it appeared that the motor was, perhaps, going to fail and a stop of the vehicle, perhaps, would be necessary, the driver was required to act in the dark with respect to what would happen should he undertake to drive upon the north shoulder. In my opinion, there was no negligence in this respect and I so find.

When we come to the question of whether there was negligence of the operators in failing to set out proper warning flares, the evidence conclusively shows a failure to comply with the provisions of the statute, which contains no qualifying word such as "practicable" used with regard to the obligation to remove a vehicle off the highway. The requirement here is absolute and a violation of it is negligence per se. Barrier v. Thomas & Howard Co., 205 N.C. 425, 171 S.E. 626; Caulder v....