Drohan v. Standard Oil Co.

• Decision Date: 26 July 1948
• Docket Number: No. 9365.,9365.
• Parties: DROHAN et al. v. STANDARD OIL CO. STANDARD OIL CO. v. KEESHIN MOTOR EXP. CO., Inc. et al. NICHOLS v. KEESHIN MOTOR EXP. CO., Inc. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

168 F.2d 761 (1948)

DROHAN et al. v. STANDARD OIL CO.

STANDARD OIL CO. v. KEESHIN MOTOR EXP. CO., Inc. et al.

NICHOLS v. KEESHIN MOTOR EXP. CO., Inc. et al.

No. 9365.

Circuit Court of Appeals, Seventh Circuit.

June 8, 1948.

Rehearing Denied July 26, 1948.

Richard P. Tinkham and John F. Beckman, Jr., both of Hammond, Ind., and Walter C. Williams, of Michigan City, Ind., for appellant.

Charles A. Boyle, of Chicago, Ill., and Harold Hector, A. H. Highland, Edwin H. Friedrich and Bernard A. Petrie, all of Hammond, Ind., (Crumpacker & Friedrich, of Hammond, Ind., and Boyle, Morrissey & Wagner, of Chicago, Ill., of counsel), for appellees.

Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

Plaintiffs brought this action against Standard Oil Company to recover damages sustained as the result of alleged negligence of defendant's driver in operating a motor truck which collided with plaintiff's tractor-trailer. Defendant, in its answer, denied it had been negligent and alleged that plaintiffs' damages were caused by the negligence of their servant in the operation of the tractor-trailer. Standard also filed a cross-claim against plaintiffs in which it joined C. A. Conklin Truck Line, Inc., and in which it sought to recover damages for loss of its truck and cargo. In its cross-claim it alleged that the collision was caused by the negligent operation of a truck owned and controlled by Conklin, and by the negligent operation of plaintiffs' tractor-trailer. Martha Nichols, administratrix of the estate of Ferris Nichols, deceased (the driver of Standard's truck), was permitted to intervene and file her cross-claim against plaintiffs and Conklin. She sought to recover damages for the death of her husband, which she alleged was caused by the negligence of Conklin and plaintiffs' servant. Upon these issues, the trial judge submitted the case to the jury for a general verdict. The jury rendered a verdict for plaintiffs and against Standard, and verdicts for plaintiffs and Conklin on the cross-claims of Standard and the administratrix, upon which verdicts judgments were entered. These judgments, Standard and Martha Nichols seek to reverse.

The negligence charged was that defendant drove its truck at a speed greater than was reasonable and proper and that defendant negligently maintained and controlled its motor vehicle.

The collision occurred on a paved highway running in an easterly and westerly direction. The highway was divided into four lanes separated by black lines. The two most northerly lanes are reserved for west-bound traffic, and the two southerly lanes for the east-bound traffic. That part of the highway where the collision occurred is in open country. Shortly prior to 6:00 a. m. on February 22, 1945, Conklin's truck, traveling east, caught fire. He stopped and parked on the outer east-bound lane of the highway, and placed flares or pot torches from 40 to 75 feet to the rear, some along the side, and others in front of the truck. The Conklin driver then disengaged his tractor and drove off to secure help. During his absence, other trucks approached from the east. The drivers stopped on the north side of the highway, and attempted to put out the fire. At this time the fire was visible for about a mile to persons approaching the scene from the east. At about 6:15 a. m. the Michigan City fire department arrived and proceeded to exinguish the fire and while so engaged, the Keeshin tractor-trailer — 10 to 12 feet in height, 20 feet long and 7 feet wide, loaded with 15,000 to 20,000 pounds of cargo, fully lighted and equipped in the rear with a bar of three red lights across the top, one red light on each corner, tail lights above the axles, and two reflectors hanging from the body which could be seen from a distance of 800 feet to the rear — slowly approached from the west and came to a stop in the outer east-bound lane. By this time the Conklin truck had been moved forward and practically off of the paved portion of the highway. Within a minute or less after plaintiffs' tractor-trailer arrived, defendant's truck (an oil tanker), loaded with 5,000 gallons of gasoline and operated by Ferris Nichols, approached from the west. It was traveling in the outer east-bound lane at a speed of 35 or 40 to 45 miles per hour. Just as the Keeshin tractor-trailer was starting to go, the driver thereof blinked his clearance lights several times, and when he noticed that the driver of defendant's oil tanker was not slowing down, he took the tractor-trailer out of gear and braced himself for the crash. Defendant's truck hit the Keeshin tractor-trailer squarely in the rear and pushed it 70 to 90 feet. The impact smashed defendant's tractor; Nichols was killed; an explosion occurred; and both outfits and their cargoes were destroyed in the fire that followed.

In its brief, in arguing for a reversal, defendant contended that the verdicts were not sustained by the evidence. Upon oral argument, however, counsel for defendant stated that he was not asking this court to reverse on the ground that the trial court had overruled his motion for a directed verdict. We take this to mean that defendant conceded that the evidence was such as to present to the jury a question of fact, i.e., whether defendant was guilty of negligence as charged in the complaint. We shall therefore proceed to consider the remaining claimed errors, the most important of which concern the instructions.

The court, after instructing the jury that an operator of an automobile was required to keep a reasonable lookout for other vehicles and use that degree of care which a reasonable and prudent person would exercise to avoid an accident, told the jury that Nichols was charged with the duty "to regularly and continuously observe the highway ahead of him so as to discover any vehicle or other conveyance on the highway."

The argument is that all that is required of one who operates a motor vehicle upon a public highway is the exercise of ordinary and reasonable care, and that by this instruction the court imposed upon defendant and Nichols a duty greater than the duty of reasonable care, and Martin v. Lilly, 188 Ind. 139, 121 N.E. 443, and Northwestern Transit v. Wagner, 223 Ind. 447, 61 N.E.2d 591, are cited.

Concerning the Wagner case, supra, it will be enough to say that that case did not involve any question of instructions and hence is not applicable. It is true, however, that in the Lilly case, supra, the court condemned an instruction which told the jury that it was the duty of the driver of an automobile, while driving the same upon a public highway, to be constantly on the lookout for vehicles that might at the time be making use of the highway. But since that case, Indiana has provided that "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." § 47-2004, Burns' Ind.Stat.Ann. For that reason we think that case is...