Fuchstadt v. United States
| Decision Date | 09 November 1970 |
| Docket Number | No. 128,Docket 34454.,128 |
| Citation | 434 F.2d 367 |
| Parties | John Adams FUCHSTADT, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Bernard Meyerson, Levine & Broder, New York City, for plaintiff-appellee.
Alan B. Morrison, Michael D. Hess, Michael C. Silberberg, Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for defendant-appellant.
Before MEDINA, WATERMAN, and FEINBERG, Circuit Judges.
At dusk on a snowy afternoon in February 1964, two automobiles proceeding westerly on a divided four lane highway in Connecticut collided as they approached New York. The accident occurred on a dangerous curve as a vehicle driven by Robert Fabio, an employee of the United States acting within the scope of his employment, attempted to pass a car operated by the plaintiff, John Adams Fuchstadt. Plaintiff's car left the road and crashed into a tree; severe injuries resulted.
An action was filed in the New York Supreme Court, Westchester County, for damages sustained from the alleged negligence of Fabio. It was removed to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 2679(d) and the parties stipulated the substitution of the United States in place of its employee.
As the vehicles entered the right-angled curve Fabio, according to testimony, at 50 miles per hour sought to pass the Fuchstadt vehicle by pulling into the left lane. It is clear that one car left its lane and struck the other car. Fuchstadt testified that as Fabio steered into the left lane to pass he saw the Fabio vehicle strike his car on the left rear bumper, and that, although this was a mild impact, the government car immediately swerved from its position in the left lane and struck Fuchstadt a second time. Fabio claimed that Fuchstadt must have hit him initially because he felt a bump. He did not testify that he saw the Fuchstadt vehicle in the left lane, but this bump, according to Fabio, pushed his car to the left and he turned his wheels to the right to prevent his car from crossing the median. It then appears that the Fabio car spun around, and Fabio did not deny that his left bumper collided with the left front of Fuchstadt's car while he was spinning and sliding, nor deny that the second contact pushed Fuchstadt's car off the right-hand side of the road. Fuchstadt's testimony was supported by the investigating State Trooper. Defendant's expert, an experienced investigator from the Police Department of the City of New York, offered his opinion that Fuchstadt struck the government car first. The trial judge agreed with Fuchstadt and found that the initial impact occurred when Fabio's car struck the Fuchstadt car as Fabio sought to overtake and pass Fuchstadt. The Government maintained that the physical evidence makes this factual conclusion impermissible and supported its contention by photographic exhibits and detailed measurements. However, these photographs and this physical evidence are not conclusive, and the absence of any photographs taken by the plaintiff cannot, without more, impute to him an admission that he, and not Fabio, caused the collision.
After the evidence had been closed the trial judge reserved decision and later filed a written opinion, holding that the plaintiff had shown by a fair preponderance of the credible evidence that the defendant was solely negligent and that the plaintiff's injuries were proximately caused by that negligence. Judgment was entered for the plaintiff and against defendant in the amount of $150,000, together with costs. The Government appeals and alleges on appeal that the court below erred in finding that the accident was solely caused by Fabio's negligence, that the damage award was grossly excessive, and that the judge made no sufficient findings of fact to support that award.
Under normal conditions we agree with appellant that a vehicle proceeding in the left lane on a sharp curve to the right would be likely, if going too fast, to continue in a straight line and thus be carried away...
To continue reading
Request your trial
-
Rudenko v Costello
...court failed to set forth findings of fact and conclusions of law sufficient to permit appellate review"); Fuchstadt v. United States, 434 F.2d 367, 369-70 (2d Cir. 1970) (remanding for findings as to plaintiff's damages in negligence In Beckford v. Portuondo, for example, the district cour......
-
Newburger, Loeb & Co., Inc. v. Gross
...in this court. See Fed.R.Civ.P. 52(a); Rapisardi v. United Fruit Co., 441 F.2d 1308, 1312-13 (2d Cir. 1971); Fuchstadt v. United States, 434 F.2d 367, 369-70 (2d Cir. 1970). Further, we can find no support in the record for the district court's conclusion that the transfer destroyed the opp......
-
Rudenko v. Costello
...court failed to set forth findings of fact and conclusions of law sufficient to permit appellate review"); Fuchstadt v. United States, 434 F.2d 367, 369-70 (2d Cir.1970) (remanding for findings as to plaintiff's damages in negligence In Beckford v. Portuondo, for example, the district court......
-
Thompson v. National R. R. Passenger Corp.
...Conboy, 551 F.2d 41, 43-44 (4th Cir. 1977); Hysell v. Iowa Public Service Co., 534 F.2d 775, 787 (8th Cir. 1976); Fuchstadt v. United States, 434 F.2d 367, 370 (2d Cir. 1970); Lettsome v. United States, 411 F.2d 917, 923 (5th Cir. 1969). But see Pritchett v. United States, 425 F.2d 663, 664......