Geigy Chemical Corporation v. Allen

• Decision Date: 28 June 1955
• Docket Number: No. 15335.,15335.
• Citation: 224 F.2d 110
• Parties: GEIGY CHEMICAL CORPORATION v. Lewis ALLEN.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 110 (1955)

GEIGY CHEMICAL CORPORATION v. Lewis ALLEN.

No. 15335.

United States Court of Appeals Fifth Circuit.

June 28, 1955.

Charles Cook Howell, Jr., Jacksonville, Fla., Benmont Tench, Jr., Gainesville, Fla., for appellant.

Wilbur F. Anderson, Grover C. Perdue, Jr., Bronson, Fla., for appellee.

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

CAMERON, Circuit Judge.

This appeal involves the question whether the Appellee who drove his automobile into the back end of Appellant's truck, negligently stopped on the highway, was guilty of contributory negligence as a matter of law, so as to bar his claim for damages. The court below submitted his civil action for personal injuries and destruction of his automobile to the jury which returned a verdict in Appellee's favor for $4,000.00. From the judgment entered thereon, Appellant appeals claiming that, although its negligence was admitted, the trial court should have sustained its motion for a directed verdict on the ground that the evidence showed as a matter of law that Appellee's negligence contributed to the damages sustained and precluded recovery under Florida law. The pertinent facts are these:

About eleven o'clock in the nighttime of Thanksgiving Eve, 1953, Appellant Chemical Company was operating its large truck and trailer in an easterly direction along Florida State Road 500. Its driver, accompanied by his wife, noticed that the motor was missing and concluded that he should stop and examine to discover the trouble. Having bent an axle the night before when he drove onto the shoulder of another road, he concluded that he would not risk such a maneuver this time, and that he would stop with all of his wheels on the pavement. The road was paved, nineteen feet wide with shoulders of dirt about three feet wide.

As soon as he stopped, he went to the back of the truck to light and set out pot flares for the protection of the truck. He was not carrying fusees or reflectors as required by Florida law. The accident happened about three or four minutes after he had stopped, and no flares or other lights had been placed along the road to warn oncoming cars. According to Appellee the lights on the truck and trailer were not burning.

Appellee, an automobile mechanic, was driving east along the same road in company with a male companion. They were on their way to a friend's house to pick up one or more dogs for a hunt the following day and were apparently absorbed in conversation about the dogs which was interrupted by the crash of Appellee's car into the back of the truck.

When Appellee was some distance from the stalled truck, probably 500 feet, he observed an automobile coming towards him from the opposite direction with its bright lights burning. Appellee dimmed his own lights, and the approaching motorist did likewise. As the two cars passed, Appellee raised his lights to bright and for the first time discovered the truck. According to his best estimate, he was about forty-four feet from the truck at that time and was driving at a speed of forty to forty-five miles per hour. He slapped on his brakes immediately but crashed into the back of the truck. Appellee introduced evidence that skid marks, made evidently by the left front wheel of Appellee's car, extended back from the point of collision a few inches more than fifteen feet and began slightly north of the center line of the road.

Appellee, a mechanic, had recently inspected his automobile and found it in perfect condition as to lights, brakes and other mechanical features and the tires were new and the treads were sharp. The road was straight for more than a half mile in each direction and was dry and the weather was clear.

The only eye witnesses were Appellee and Appellant's driver, and the facts above set forth constitute Appellee's version except as to phases of the proof which Appellee did not cover and about which there was no dispute. Appellee's testimony was vague and unsatisfactory, and the court below held a tight rein on his cross-examination, an unfortunate circumstance in view of the fact that his right to recover is predicated largely on his own testimony, and the cross-examination was developing from Appellee's testimony which was inherently unbelievable and inconsistent with his other testimony.

Appellee testified at one time that he was looking straight down the highway towards the truck, and stated that he did not ever look at the lights of an oncoming car but kept his eyes focused on his side of the road. Upon being pressed with the question, "Those lights didn't affect you at all did they?" He replied, "No, sir". Nevertheless, he reiterated several times his statement, "I give him dim and he give me dim and just as I passed the car that was facing me, I hit the back of that van. There was nothing I could see on the road." He stated upon cross-examination that, when he passed the car he was meeting and turned on his bright lights, he was as far from the truck as the back of the court room (this upon measurement proved to be forty-four feet). When pressed as to how far it would take him to stop the car he was driving at the stated speed — he was an experienced driver and accustomed to drive this car and familiar with the road at the point — he first said, "It wouldn't take you five foot". Later he varied this estimate but at no time did he express the opinion that more than twenty-five feet would be required to stop his car at the speed he was making.

At one point he indicated that his car was making the same speed at the time of the collision it was when he passed the other car, but later he insisted that he must have reduced the speed some before the impact.

At no time did Appellee claim that the car he was meeting had brighter than ordinary lights, or that those lights were not dimmed at the proper time, or that his meeting with that car was attended with any unusual circumstances. Nor did he seek to give any explanation of why he had not seen the truck before he passed the other car or why, within the forty-four foot space, he did not reduce his speed enough to pass the truck on his left or at least to make the collision relatively inconsequential, or why his brakes did not take effect until he was fifteen feet from the truck. Appellee did not claim that he reduced his speed or took any other step for the protection of himself or those who might be beyond the meeting point of the other car at the time his vision was diminished or destroyed by its lights.

In order that Appellee's testimony may be fully understood and appraised, it should be noted that other testimony showed without dispute that the truck was forty-five feet long, eleven feet four inches high, nearly eight feet wide, and weighed above fifty-one thousand pounds. Its sixteen wheels were all locked by one hundred twenty pounds air pressure. The impact of Appellee's car with the truck was sufficient to knock the truck driver's wife from her seat, to force the back wheels forward against the next set of wheels on the trailer, to bend the truck axles, break its springs, blow out one tire, causing a damage of Seven Hundred Eighty-five Dollars, and to move the truck substantially eight inches.

The testimony showed further without contradiction that the skid marks of the Appellee's car began slightly on the left or north side of the center line of the road and veered about eighteen inches south of the center line before the point of collision. Appellee's car was a total loss; the engine in it was driven back into the car with such force as to kill the passenger, and to injure the Appellee seriously. The pictures of the car in the record show that the front end was crushed down by being driven under the truck to a point including the top of the car immediately over the front seat, and that the front seat itself was driven back to contact with the back seat.

It is not improper to note that the truck driver stated that all of the parking lights on the truck were lit (Appellee denied this), that he had worked as fast as he could getting out the pot-type flares and lighting one to place on the road a short distance behind his truck when he observed Appellee's car coming at a terrific rate of speed, — he estimated it at seventy miles an hour. He stated further that he had to jump away from the point he was placing the flare to keep from getting hit.

Appellant contends that the facts adduced in support of Appellee's case show without dispute that he was not keeping a proper lookout in front of him, and was undisputedly violating the range of vision doctrine as established by the courts of Florida and recognized by this court. Attention is called to the Florida Statute¹ requiring that headlights shall be adequate to reveal persons and vehicles at a distance of at least three hundred fifty feet; and that Appellee testified that his bright lights would satisfy that requirement. It is further argued that the testimony shows without contradiction that Appellee was not obeying the Florida rule that, "it is the duty of a motor vehicle driver at all times, day or night, to operate it so that he can stop or control it within the range of his vision", Appellant calling attention to decisions announcing that rule from this court as well as the Supreme Court of Florida.²

We think it is clear that Appellee's own contributory negligence barred his recovery under Florida law.³ Appellee's own testimony gives rise to the definite presumption of contributory negligence and his own efforts at weakening or removing that presumption served but to strengthen it.⁴ When projected...