Fernberg v. T.F. Boyle Transp. Inc.
| Decision Date | 04 October 1989 |
| Docket Number | No. 89-1376,89-1376 |
| Citation | 889 F.2d 1205 |
| Parties | Paul R. FERNBERG, etc., et als., Plaintiffs, Appellants, v. T.F. BOYLE TRANSPORTATION INC., et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Stephen E. Borofsky, with whom John M. Lewis and The Legal Clinics, Professional Ass'n, Manchester, N.H., were on brief, for plaintiffs, appellants.
Michael L. Alfano, Manchester, N.H., with whom Ralph R. Woodman, Jr. and Boynton, Waldron, Doleac, Woodman & Scott, Portsmouth, N.H., were on brief, for defendants, appellees.
Before CAMPBELL, Chief Judge, TIMBERS, * Senior Circuit Judge, and TORRUELLA, Circuit Judge.
Appellants Paul R. Fernberg, administrator of the estate of Jeremy P. Fernberg, and Paul R. Fernberg and Maureen F. Fernberg, individually (collectively "appellant"), appeal from a judgment entered February 1, 1989 in the District of New Hampshire, Shane Devine, Chief District Judge, upon a verdict in favor of T.F. Boyle Transportation, Inc. ("Boyle") and David M. Donaghue ("Donaghue") in a wrongful death action arising from a motor vehicle accident.
Appellant raises several issues, contending that the district court misinterpreted and misapplied negligence law and made findings of fact and rulings of law inconsistent with the evidence at trial. We find, and appellant's counsel at oral argument asserted, that the chief claims of error are: (1) that the district court erred in its general formulation of the standard of care owed by the motor vehicle operator to decedent; (2) that the district court erred in its formulation and analysis of the foreseeability and causation issues; and (3) that the district court's findings as to how the accident occurred are not supported by the evidence.
We affirm.
We shall summarize only those facts believed necessary to an understanding of the issues raised on appeal.
This unfortunate accident occurred on September 2, 1983. Jeremy P. Fernberg, an eleven year old boy, was riding his bicycle in a northerly direction on Grafton Road, Pease Air Force Base, New Hampshire. His destination was the base commissary. At the same time, Boyle's tractor trailer unit was being operated by its employee, Donaghue, also in a northerly direction on Grafton Road. As the tractor trailer was passing Jeremy on his bicycle, the bicycle fell under the right rear trailer wheels, killing Jeremy.
The scene of the accident was an asphalt-paved highway twenty-two to twenty-three feet in width. It was divided into two travel lanes by a painted double yellow line. Its paved extremities were marked by six-inch wide painted white lines. There were no gravel or paved shoulders. In the area of the accident, abutting the extreme easterly edge of the highway, was a two- to four-inch drop to the dirt area immediately below. The accident was witnessed by three people other than Donaghue: two motorists who were traveling northbound, directly behind Donaghue, and one motorist who was traveling southbound, several hundred feet ahead of the tractor trailer unit. Donaghue and the three motorists testified at trial.
The accident occurred at 11:20 A.M. on a clear sunny day. The pavement was dry. Jeremy Fernberg was riding his bicycle close to the easterly edge of Grafton Road. The posted speed limit was 35 miles per hour. At all relevant times, Jeremy's bicycle speed was five to ten miles per hour. As the tractor trailer approached from Jeremy's rear, he turned his head and observed it. The tractor trailer never exceeded 30 miles per hour. It pulled out to pass the bicycle, with a substantial portion of both tractor and trailer in the southbound lane. As the tractor trailer passed Jeremy, its right side was never closer to the east side of Grafton Road than five and one-half feet. When Donaghue pulled out to pass, there were no northbound vehicles ahead of his truck. The nearest southbound vehicle, operated by Sgt. Benny Ross, was at least four hundred and fifty feet ahead of the tractor trailer.
While the trailer portion of the unit was passing Jeremy, his glasses (which were new) fell off. He grabbed for them. In doing so, one bicycle wheel dropped off the easterly edge of the pavement. Jeremy tried to correct the bicycle's course by turning left and pedaling, but the momentum caused him and the bicycle to be propelled under the right rear wheels of the trailer unit. Donaghue saw the erratic movement of the bicycle in his right side mirror. As the bicycle disappeared from view, Donaghue immediately applied his emergency brakes, got out of the tractor and ran back to where Jeremy and the bicycle were under the trailer. Jeremy was later pronounced dead at the hospital that same day.
Paul R. Fernberg, administrator of the estate of Jeremy P. Fernberg, and Paul R. Fernberg and Maureen F. Fernberg, individually (the decedent's parents), commenced a wrongful death action in the United States District Court pursuant to N.H. Rev.Stat.Ann. ch. 556:12 (1974) ("wrongful death statute"). 1 Appellant alleged that Donaghue, in the course of his employment by Boyle, ran over and killed decedent with his tractor trailer unit while negligently attempting to pass decedent on the highway. Prior to the conclusion of the trial, appellant agreed to a voluntary dismissal of his claim against Donaghue. Also prior to the conclusion of the trial, the district court dismissed the individual claims of Paul and Maureen Fernberg for the loss of decedent's society.
The trial began as a jury trial. After the completion of appellant's case and during cross examination of Donaghue by appellant's counsel, however, the fact of appellees' insurance was disclosed. 2 Boyle's counsel moved for a mistrial, which the district court granted. Appellant's counsel then suggested that the case proceed as a bench trial. The court informed counsel that, if the case proceeded as a bench trial, a decision would not be rendered for at least six months, and a substantially longer period would be required unless a transcript was ordered. After consideration, appellant's counsel agreed to a bench trial. The trial was concluded on June 6, 1986. The opinion was filed on February 1, 1989. The district court found, by a preponderance of the evidence, that Boyle, acting through its employee Donaghue, was not negligent since Donaghue did not breach any duty of care owed to decedent.
On appeal, appellant raises a large number of issues. We address only those set forth in the second paragraph of this opinion. 3
The district court in its opinion stated the applicable standard of care owed by Donaghue to decedent as follows:
.
Appellant challenges this formulation of the standard of care, asserting that the court simply articulated the law school standard definition of negligence without formulating the standard in the context of this case. He contends that under the circumstances Donaghue should have observed greater caution in passing decedent on his bicycle and should have been held to a higher duty of care.
We find no merit in this claim of error. The district court correctly relied on New Hampshire cases in support of its statement of the applicable elements of negligence and concept of care. 4
In short, we hold that the district court did not err in its general formulation of the standard of care owed by Donaghue to decedent.
We turn next to appellant's contention that the district court erred in its formulation and analysis of the foreseeability and causation issues.
The district court found that there were two concurring causes of this tragic accident.
Appellant essentially contends that the district court, in analyzing decedent's conduct at the time of the accident, failed to discuss the effect of Donaghue's conduct on decedent. He argues that the district court failed to consider the foreseeability and causation issues as presented to it by appellant. 5 We disagree.
The district court's failure to address at length appella...
To continue reading
Request your trial
-
Chamberlin v. 101 Realty, Inc.
...the entry of judgment by the district court, while not to be encouraged, does not warrant reversal. See Fernberg v. T.F. Boyle Transp. Inc., 889 F.2d 1205, 1209 n. 6 (1st Cir.1989) (two and one half year delay in filing ...
-
Keller v. U.S.
...findings. Cf. Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 787 (1st Cir.1990) (excusing two-year delay); Fernberg v. T.F. Boyle Transp., Inc., 889 F.2d 1205, 1209 (1st Cir.1989) (excusing two and one-half year delay). Keller attributes the purported generality in the district court finding......
-
Navarro de Cosme v. Hospital Pavia
...court's exclusion of the Cosmes' witnesses on the issue of damages cannot constitute reversible error. See Fernberg v. T.F. Boyle Transp. Inc., 889 F.2d 1205, 1209 n. 6 (1st Cir.1989). Nevertheless, since these exclusions are also submitted as another instance of alleged bias, we will consi......