Friedman v. Fordyce Concrete, Inc.

• Decision Date: 30 June 1966
• Docket Number: No. 18219.,18219.
• Parties: Sam FRIEDMAN, Appellant, v. FORDYCE CONCRETE, INC., and John R. Holt, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

362 F.2d 386 (1966)

Sam FRIEDMAN, Appellant, v. FORDYCE CONCRETE, INC., and John R. Holt, Appellees.

No. 18219.

United States Court of Appeals Eighth Circuit.

June 30, 1966.

Arthur J. Kase, Kansas City, Mo., for appellant. I. L. Kraft, Kansas City, Mo., on the brief.

Billy S. Sparks, Kansas City, Mo., for appellees, and filed brief.

Before VOGEL, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges.

MATTHES, Circuit Judge.

This personal injury action was tried by the court without a jury. Plaintiff has appealed from the judgment in favor of the defendants.

Diversity of citizenship and the amount in controversy establish jurisdiction. The collision giving rise to plaintiff's cause of action occurred on a public street in Kansas City, Missouri, therefore, the substantive law of Missouri is controlling.

Plaintiff attempted to establish liability of defendants on the theory of primary negligence. More specifically, plaintiff alleged and endeavored to prove that defendant, John R. Holt, drove and operated the motor truck owned by defendant, Fordyce Concrete, Inc., into and against the rear end of plaintiff's automobile at a time when plaintiff's automobile was stopped. The so-called "rear end collision doctrine" invoked and relied upon by plaintiff, has been recognized and applied by the Missouri Courts in numerous cases. See e. g. Witherspoon v. Guttierez, 327 S.W.2d 874 (Mo.Sup. 1959); Snyder v. Hedges, 381 S.W.2d 376, 380 (Mo.App.1964); Hughes v. St. Louis Public Service Co., 251 S.W.2d 360, 362 (Mo.App.1952).

Following the trial, the court, Honorable John W. Oliver, filed findings of fact and conclusions of law absolving the defendants from liability. As the case reaches us the principal question at issue is whether the court's conclusion of no liability was induced by findings of fact that are clearly erroneous within the ambit of Rule 52(a) F.R.Civ.P. Plaintiff singles out this finding: "defendants could not, with the exercise of the highest degree of care, have avoided the accident," and argues that it is contrary to the overwhelming weight of the evidence and is, therefore, clearly erroneous.

The basic rules to be applied in resolving the question before us are axiomatic. This court, upon review, will not retry issues of fact, neither will we substitute our judgment on such issues for that of the trial court. We are not permitted to set aside a finding of fact unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Cleo Syrup Corporation v. Coca-Cola Co., 139 F.2d 416, 417, 150 A.L.R. 1056 (8 Cir. 1943). Findings of fact are presumptively correct and the complaining party has the burden to clearly demonstrate that error exists in the findings of the trial court. Joseph A. Bass Company v. United States, 340 F.2d 842 (8 Cir. 1965); Warnecke v. MacDonald Construction Co., 323 F.2d 715, 716 (8 Cir. 1963); Montgomery Ward & Company v. Steele, 352 F.2d 822, 830 (8 Cir. 1965).

We have carefully examined the evidence in light of the foregoing rules and have no difficulty in reaching the conclusion that the court's findings of fact are supported by substantial evidence, and that its conclusions of law and ultimate judgment are not entitled to be disturbed.

The facts leading up to the collision between plaintiff's automobile and defendants' truck are not in dispute. Sixth Street is a public thoroughfare extending in an east and west direction in Kansas City, Missouri. There were 4 vehicles traveling eastwardly on Sixth Street about 3:45 P.M., November 4, 1963. The first vehicle, a Falcon automobile, driver unknown, turned suddenly to its right and directly in the path of the second vehicle, an automobile being driven by Craig Boyd. When this occurred, Boyd brought his automobile to a stop, and was struck in the right rear by the left front of the third vehicle, the automobile driven by the plaintiff. Immediately prior to this impact the plaintiff's automobile had been struck in the right rear by the left part of the front bumper of the fourth vehicle, the defendants' truck.

In application of the "rear end collision doctrine," it is essential to plaintiff's recovery for the evidence to show that the front vehicle was in a place on the highway where it then had the right to be. "If one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle." Hughes v. St. Louis Public Service Co., supra, 251 S.W.2d at 362; see Witherspoon v. Guttierez, supra; Snyder v. Hedges, supra. Thus, the relative position of the involved vehicles just prior to the collision between plaintiff's automobile and defendants' truck is important. Plaintiff's trial position was that his automobile was directly in front of defendants' truck and that as a result of negligence, defendants' truck rear ended his automobile. Contrarily, defendants' evidence showed that plaintiff's automobile was in the lane to the left of the truck and that plaintiff turned abruptly and without warning to his right and directly into the lane of traffic occupied by the truck, and that under these circumstances, it was impossible for defendant Holt to stop the...