Deitz v. Greyhound Corporation, No. 15909.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, , and CAMERON and BROWN, Circuit
• Citation: 234 F.2d 327
• Parties: Mrs. Nita Bergeron DEITZ, Individually and as Natural Tutrix of her minor children, Bruce Clinton Deitz, Jr. and Hilda Cecelia Deitz, Appellants, v. The GREYHOUND CORPORATION, Appellee.
• Docket Number: No. 15909.
• Decision Date: 03 July 1956

234 F.2d 327 (1956)

Mrs. Nita Bergeron DEITZ, Individually and as Natural Tutrix of her minor children, Bruce Clinton Deitz, Jr. and Hilda Cecelia Deitz, Appellants,
v.
The GREYHOUND CORPORATION, Appellee.

No. 15909.

United States Court of Appeals Fifth Circuit.

June 5, 1956.

Rehearing Denied July 3, 1956.

234 F.2d 328

B. B. Taylor, Jr., Charles W. Phillips, Baton Rouge, La., for appellants.

G. T. Owen, Jr., Baton Rouge, La., Borron, Owen, Borron & Delahaye, Baton Rouge, La., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

After the second of two mistrials from an inability of each of the juries to arrive at a verdict, the District Court granted the Bus Company's motion j.n. o.v., Fed.Rules Civ.Proc., 50(b), 28 U.S. C.A., and thus denied the claim for the death of Deitz, Sr., occasioned when his Buick sedan, coming across the heavily traveled east-west arterial Highway U. S. 90 from an adjacent filling station, was hit broadside by a westbound Bus as it sought to avert collision. The Judge, without opinion but by brief minute entry, assuming, at least arguendo, negligence on the part of the Bus, held that the decedent was guilty of contributory negligence as a matter of law which, under Louisiana law, defeats recovery altogether. Complaining of this action,

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the Dietzs insist that at worst this was a jury issue and that the Court also erred in refusing to give requested charges submitting the doctrine of Last Clear Chance

While it is not for us, in assaying the underlying question of the correctness of granting the motion j.n.o.v. to pass upon the credibility of witnesses or weigh evidence permitting conflicting or variable inferences, Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; DeZon v. American President Lines, Ltd., 9 Cir., 129 F.2d 404; Boston & Maine R. R. v. Cabana, 1 Cir., 148 F.2d 150, certiorari denied 325 U.S. 873, 65 S.Ct. 1414, 89 L.Ed. 1991; Roth v. Swanson, 8 Cir., 145 F.2d 262, 265; Moore's Federal Practice, 2d Edition, Vol. 5 at 2314-2315, the very fine bead which the plaintiff must draw to succeed on the evidence of this record is brought into sharp focus by a consideration of the evidence brought forward by the Bus Company, plus those inferences arising from other evidence claimed by it to be conclusively favorable. This is especially so since Deitz, Sr., the driver and sole occupant of the Buick Sedan, was killed almost instantly.

The accident occurred where U.S. 90 runs in an east-west direction through a small group of buildings scattered along the highway a few miles west of Boutte. The highway is a black-topped, concrete slab 24 feet wide and with no painted center stripe. All of the buildings are well back from the highway itself, and the view of the highway to the east of Third Street is unobstructed for at least a mile. The collision took place about opposite Griffin's filling station garage.

In the general area of the collision, there was, on the north side of the highway the Roundhouse Cafe and Griffin's Filling Station Garage. Griffin's Filling Station fronted on the highway. An island of three gasoline pumps was situated 52 feet back from the north edge of the paved slab and about 30 feet to the east of the boundary of a small, shelled road called Third Street making a T intersection with U.S. 90 and 83 feet west of the entrance to the Roundhouse Cafe. The area between the slab and these buildings was shelled with no perceptible shoulder to the highway or line dividing Griffin's "apron" from the adjacent Third Street. The impact occurred about in front of Griffin's place. When the vehicles came to a stop, the Buick, lying substantially north-south, angled slightly eastward, was completely off the slab and on the shoulder on the south side of the highway at a point about 16 feet west of an imaginary extension of the west side of the little, shelled Third Street. The Buick, with its left middle deeply smashed in, was wrapped around the left-center-front end of the Bus. The Bus, also completely off the highway, angled slightly southwest with its right rear dual wheels a foot or so off the slab.

Just before the collision, which took place about 4:30 p.m., Deitz had had some light food (but no alcoholic drinks) in the Roundhouse Cafe. Apparently he got into his Buick and, intending to return to his motel located, it was later learned, a few miles to the east, he proceeded in a westerly direction on the shell apron in front of Griffin's gasoline pumps. Sticking 6 to 10 feet out from the pumps was an air signal hose which rang a bell as the Buick passed over it. Griffin, nearby and occupied in doing some painting, momentarily looked up, saw the Buick passing in front of the pumps and headed diagonally to the south and west. The Buick was then 12 to 15 feet from the black top highway and in the general area where the shell apron and Third Street ran together. As the Buick reached this spot, Griffin resumed mixing paint and shortly (he did not fix the time) he, "heard the air brakes and then bang. Almost that fast. From the time I heard the air brakes I heard the crash." As Griffin judged it, the speed of the Buick was not over 12 to 14 mph. From this the jury could have concluded that Deitz drove from the Cafe approximately 130 feet to the west

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with his car angling toward the south-southwest as he came close to the black top slab.¹

This was the case as the plaintiffs made it. As made, there was no evidence that Deitz stopped his car, had looked, or had taken any steps to ascertain whether it was safe to enter, let alone, cross the arterial highway. Nor was there anything except the accident and pictures of the wreckage from which to draw any inferences as to the speed or the actions of the Bus either before or as the situation was developing.

In the final analysis, the plaintiffs undertake to make their case out of the testimony of the Bus driver, relying in large part upon inconsistencies and contradictions that appear as he related it from time to time — not as merely showing lack of credibility, but as indicating affirmatively an explanation for the accident which would cast, not exonerate, the Bus Company.

On the trial the story² was essentially that, seeing the Buick suddenly come out into the highway when the Bus was 125 feet away and proceeding about 45 to 50 mph, the Bus driver reacted promptly to the danger, blew his air horn, put on the air brakes, and pulled toward the left, but before he could stop, the Bus, when a few feet to the left of the center of the highway, hit the Buick broadside pushing it 40 to 50 feet, in effect, over to the final place of rest on the south shoulder. This was different in at least one respect from his written statement³ given to the Highway Police in which he asserted that the blowing

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of the air horn was a precautionary move prior to the Buick's cutting across into the road. It also corroborated the plaintiff's theory that the vehicles moved 25, not 40 or 50 feet, after the impact. But despite these differences, the fact of the Buick suddenly coming out into and across the highway in the path of a large Bus operating at high, but legal, speed runs throughout as a common thread, with corroboration by some six passengers⁴ having the status of disinterested witnesses whose testimony cannot be disregarded, Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L. Ed. 983; Quock Ting v. United States,

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140 U.S. 417, 11 S.Ct. 733, 35 L.Ed. 501; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Foran v. Commissioner, 5 Cir., 165 F.2d 705; Reed v. Murphy, 5 Cir., 232 F.2d 668; Ross v. Commissioner, 5 Cir., 227 F.2d 265; Goldberg v. Commissioner, 5 Cir., 223 F.2d 709, unless it has to give way in the face of overpowering physical facts, or other evidence which simply makes it incredible or inherently improbable, cf. Geigy Chemical Corporation v. Allen, 5 Cir., 224 F.2d 110, quoting from, in footnote 5 at page 114; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747, 749; Boyett v. Commissioner, 5 Cir., 204 F.2d 205; Griffin v. Kelley, 5 Cir., 227 F.2d 258; Archer v. Commissioner, 5 Cir., 227 F.2d 270; Carmack v. Commissioner, 5 Cir., 183 F.2d 1, certiorari denied, 340 U.S. 875, 71 S.Ct. 121, 95 L. Ed. 636

On this version, reasonable minds could only conclude that Deitz disregarded altogether the Louisiana statutory and judicial rules requiring that a driver entering a heavily traveled, main, "preferential" or "favored" highway ascertain, by stopping, looking and all other suitable means, that the entrance, in the light of existing and visible traffic conditions, may be made in reasonable safety.⁵ He is charged with having seen what was so plainly open to him on this long, unobstructed stretch of roadway,⁶ and the Bus driver, legally operating the Bus on the highway, was entitled to assume that the Buick would comply with this vital rule of care.⁷

This brings us then to the crux of the case: does an asserted prior inconsistent statement of the Bus driver, or certain physical facts demonstrated by photographs, either alone or together, present contrary "facts" which the jury could credit, and, on the basis of the "old" or "new" facts permit inferences that the Bus violated some duty which, rather than Deitz's negligence, caused his death?

The plaintiffs insist that the Bus driver's remarks⁸ made in the course of a

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conversation with the Louisiana Highway Patrolman immediately after the accident were res gestae and showed, or permitted the jury to conclude, that the But got far over into its left lane, not out of an emergency reaction to the Buick suddenly coming out into the...