Day v. Newton, 2852

• Decision Date: 13 May 1944
• Docket Number: 2853.,No. 2852,2852
• Citation: 142 F.2d 582
• Parties: DAY et al. v. NEWTON. HIGHWAY INSURANCE UNDERWRITERS v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

142 F.2d 582 (1944)

DAY et al. v. NEWTON.

HIGHWAY INSURANCE UNDERWRITERS v. SAME.

Nos. 2852, 2853.

Circuit Court of Appeals, Tenth Circuit.

May 13, 1944.

Irwin Snattinger and Roy N. McCue, both of Topeka, Kan., for appellants.

Alex Hotchkiss, of Lyndon, Kan., and Robert Stone, of Topeka, Kan. (James A. McClure, Robert L. Webb, Beryl R. Johnson, and Ralph W. Oman, all of Topeka, Kan., on the brief), for appellees.

Before PHILLIPS and HUXMAN, Circuit Judges, and RICE, District Judge.

HUXMAN, Circuit Judge.

Plaintiffs, Leoto Newton and B. M. Newton, instituted their separate actions in the United States District Court for the District of Kansas to recover damages resulting from a collision between a trailer truck operated by the defendant H. A. Day, and an automobile which was being driven by plaintiff B. M. Newton. The two causes of action were consolidated for trial and were tried to the court. The collision occurred between the trailer part of the truck and the automobile. Judgment was entered for each plaintiff, and the defendants have appealed. The grounds relied upon for reversal are: (1) That there is a failure of evidence to establish negligence on the part of defendants or their agents; (2) that both plaintiffs were guilty of contributory negligence; and, (3) that the amount of recovery in each case was excessive.

The accident occurred about 8:00 o'clock P.M. on November 28, 1942, on U. S. Highway 75, approximately one-half mile north of Lyndon, Kansas. The highway runs north and south at the place where the collision occurred. B. M. Newton testified that it was a dark, stormy night, that it was snowing and the wind was blowing; that he was driving north on the right side of the highway at a speed of approximately ten or fifteen miles an hour; that about three or four hundred yards ahead of him he saw dim lights coming toward him through the snow; that as he approached the lights he slowed down; that he thought he was completely on his side of the highway; that as he got past the tractor, the next thing "there was just two big wheels right in front of me and the crash occurred." He testified that the truck seemed to be traveling on the east side of the middle of the highway. Mrs. Newton testified that she saw the lights coming directly toward them; that they passed the front end of the truck and she thought they were by it when just out of nowhere those big wheels loomed up directly in front of them.

Oliver L. Green, the sheriff, testified that he came upon the scene of the accident shortly after it happened; that he made measurements which indicated that the truck was to the east of the center of the highway; that he told Mr. Pasley, the driver of the truck, that it looked like he was past the center of the highway and that his reply was, "Well, it looks that way." He also testified that the driver of the truck told him that he was "tapping his brakes slightly to slow his speed."

This evidence sustained the finding of negligence on the part of the driver of the truck. Driving on the wrong side of the road, especially under weather conditions as they were that night, was negligence. It is conceded that applying the brakes to the tractor part of the truck to reduce the speed would have a tendency to cause the trailer to overrun the truck. This would tend to cause the trailer to "jackknife" or swing at right angles to the direction in which the truck was traveling. If this occurred, it would tend...