Davis v. Brooks Transportation Company

• Decision Date: 17 August 1960
• Docket Number: Civ. A. No. 2102.
• Citation: 186 F. Supp. 366
• Parties: Ida B. DAVIS et al., Plaintiffs, v. BROOKS TRANSPORTATION COMPANY, Incorporated, et al., Defendants.
• Court: U.S. District Court — District of Delaware

186 F. Supp. 366

Ida B. DAVIS et al., Plaintiffs, v. BROOKS TRANSPORTATION COMPANY, Incorporated, et al., Defendants.

Civ. A. No. 2102.

United States District Court D. Delaware.

August 17, 1960.

Howard M. Berg, Wilmington, Del., for plaintiffs.

William Prickett, Wilmington, Del., for defendants.

LAYTON, District Judge.

This is a motion for summary judgment. The facts are so unusual that the motion should be granted out of hand if for no other reason than that, if there were a jury verdict for the plaintiffs, it is difficult to see how, in justice, it could ever be sustained.

On the night of September 25, 1958, the defendants' tractor trailer, driven by the co-defendant Massie, was proceeding west towards Baltimore on the outside, or north, lane of Route 40, a dual highway. The posted speed limits for trucks is 45 M.P.H. Both Massie and the driver of a following truck testified that he, Massie, was driving from 43 to 45 M. P.H. The tachometer on the defendant truck showed that at the time of the accident, it was proceeding 47 M.P.H. Ahead of Massie lay the relatively unimportant intersection of Sunset Lake Road with Route 40. It is a flat, right-angled intersection. Five hundred feet south of this intersection on Sunset Lake Road is a warning that stop signs guarding Route 40 lie ahead. There are two stop signs against Sunset Lake Road, one just south of the eastbound section of the dual highway and the other in the middle of the grass plot separating the east and west sections of the highway. The three decedents, to whom I shall refer as plaintiffs, had come to Delaware from Kentucky a few days prior to the accident looking for work. Absolutely nothing is known of their whereabouts or actions prior to this accident. The uncontroverted evidence shows that their car, northbound on Sunset Lake Road, was proceeding at a speed from 60-80 M.P.H., did not slow down at the warning sign and proceeded out through this intersection without any slacking of speed whatsoever, through both stop signs and into the westbound lane of Route 40 where it collided violently with the rear wheels of the defendants' tractor. The impact was so tremendous that the tractor and trailer jack-knifed, the air brakes were broken and the tractor-trailer skidded and slewed a considerable distance down the highway before stopping. The three plaintiffs were killed almost instantly. At impact, the right-hand front door of the plaintiffs' car sprang open and the three were catapulted out. The conclusion of the investigating police was that the last man out, Charles Davis, was the driver. No other evidence is, or ever will be, available on this point and, since the conclusion is reasonable, in accordance with human experience, and because Davis alone of the three had a driver's license, I accept the fact that Davis was the driver. Blood tests demonstrated that Davis and Bubbich Griffith were intoxicated¹ and that James Griffith had been drinking.

The first question for decision is whether Massie was guilty of any negligence which was a proximate cause of the accident. If not, that is an end to the matter. He was going slightly, very slightly, in excess of the legal limit. This was negligence per se. But was this excess speed of two miles per hour over the statute a proximate cause of the accident? The point of inquiry is whether this accident would have ever happened at all but for the incredibly reckless operation of the plaintiffs' machine, bearing in mind that even had the defendants' truck been stopped, the accident would have still happened. Thus viewed, it is apparent that the sole cause of the accident was the reckless negligence of plaintiff Davis.² Compare Warren v. Anchor Motor Freight, Inc., Del.Super.1951, 7 Terry 188, 81 A.2d 321; Davis v. Younger Bros., Tex. Civ.App.1953, 260 S.W.2d 637; Knecht v. Buckshorn, Ct.App.Ky.1930, 233 Ky. 329, 25 S.W.2d 727; Maiwald v. Public Service Co. of N. H., Sup.Ct.N.H.1945, 93 N.H. 276, 41 A.2d 247; Wilmes v Mihelich, Sup.Ct.Minn.1947, 223 Minn. 139, 25 N.W.2d 833.

The plaintiffs also charge that the defendant failed to keep a proper lookout contributing to the accident. Before considering this point, the Delaware case of Williams v. Chittick and Kozelski, Sup.Ct.Del.1958, 139 A.2d 375, 378, should be examined. The facts are quite similar. Kozelski was driving north on Route 13, a favored route. Chittick, the deceased, was his passenger riding in the front seat. There is a question as to whether Williams, driving the vehicle on the disfavored road stopped at the intersection or, as here, proceeded on through without stopping at the stop sign, and ran into the side of the Kozelski car killing Chittick. In any event, whether Williams stopped at the stop sign or proceeded on through, Kozelski did not see his car until immediately before the collision. A Delaware statute, 21 Del.C., § 4125(b) requires every driver to proceed at an "appropriate reduced speed when approaching and crossing an intersection". Williams contended that Kozelski was guilty of negligence in failing to control his car properly at the intersection and in failing to keep a proper lookout. As to the question whether Kozelski's failure to reduce his speed at the intersection constituted negligence which was a proximate cause of the accident, the Supreme Court said this:

"2, 3 Was Kozelski guilty of negligence? Kozelski was operating his car on a through highway. He was the favored driver. As such he was entitled to assume that Williams would obey the law and would not enter the intersection until he could do so with reasonable safety. That right continued until Kozelski was put on notice that Williams was entering, or was about to enter, the highway in the path of Kozelski's car. Absent this circumstance which would place him on warning that another vehicle was about to enter the highway in an unlawful manner, Kozelski was not bound to anticipate negligence on the part of such driver traveling on the less-favored street but was entitled to proceed without abating the speed of his car. * * * In entering the highway as he did, Williams was admittedly guilty of negligence contributing to the accident. The question of whether or not he stopped at the stop sign—as he says he did—or entered the intersection without stopping is not important here. In either case, he was guilty of negligence contributing to the accident.

"4 Williams makes much of the words `appropriate reduced speed' found in Section 4125(b) of Title 21 Del.C.1953. He interprets this clause to mean that it is mandatory upon the driver on a through highway, at all times and under all conditions, to reduce the speed of his car to an `appropriate reduced speed', whatever that may be. He says that in failing to reduce his speed at the intersection, Kozelski violated this statute.

"We do not agree. It is generally unnecessary for a driver on a through highway to slow down when he reaches an inferior crossing to ascertain whether a driver on the latter road will observe the provisions of the law and the stop sign erected in accordance therewith. * * * Unless the driver on the through highway has some warning of danger likely to occur at such intersection, the words `appropriate reduced speed' have no significance here. * * *"

Curiously enough there was no discussion by the Court of the charge of failure to keep a proper lookout. As in this case, the defendant driver, Kozelski, did not see the Williams car at the intersection. Unlike this case, it was "dusk" and there was a question whether Williams' lights were on. In the instant case, the plaintiffs' lights were on and were seen by the following truck driver but he was unable to say just when in relation to the accident.

Despite the question whether or not Williams' lights were on and, whether or not even if his lights were not on, Kozelski could or should have seen the Kozelski car in time to have averted the collision as charged, the trial judge granted a directed verdict and the Supreme Court sustained, contenting itself by saying only this as to lookout:

"* * * This does not mean that he does not have to keep such lookout as a reasonably prudent person would do in order to discover possible danger or to act carefully under existent conditions. Of course, cases may arise where under certain circumstances the driver on a favored road may be guilty of negligence contributing to the accident. But he is not required to slow down in anticipation of danger which has not become apparent."

Conceding that Massie was duty bound to keep a reasonable lookout to discover possible danger, should he have seen the plaintiffs' car and concluded that its speed constituted a danger in time to have slowed down or otherwise averted this accident? We know that the headlights were visible at some point just prior to the intersection and that the driver of the following truck saw them and realized that from the "bobbing" of the lights, the plaintiffs were going at high speed. We know that Massie did not see the plaintiffs' car until it was about 20 ft. to his left or, in other words, when plaintiffs' car was just about at the second stop sign in the edge of the grass plot. We also know that in a dual highway of this sort, the southerly intersection of Sunset Lane Road with Route 40 was nearly 100 ft. to Massie's left and that his most imperative duty was to keep his eyes on the road ahead generally and for traffic emerging from his right as well as for cars slowing ahead of him to turn left or emerging from his immediate left into his own southbound lane of traffic. Under such circumstances, with the streams of traffic using our modern highways and, particularly at night, it is imposing a heavy duty upon a driver to say that he must also keep a lookout for traffic coming into the eastbound lane of Route 40 nearly 100 ft. away. Even so, on a motion for summary judgment, I feel that it would be invading the province of a jury to hold that,...