General Portland Cement Company v. Walker, No. 18422.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, , and RIVES and WISDOM, Circuit
Citation293 F.2d 294
PartiesGENERAL PORTLAND CEMENT COMPANY, Appellant, v. Barbara WALKER, Appellee.
Decision Date30 August 1961
Docket NumberNo. 18422.

293 F.2d 294 (1961)

GENERAL PORTLAND CEMENT COMPANY, Appellant,
v.
Barbara WALKER, Appellee.

No. 18422.

United States Court of Appeals Fifth Circuit.

July 20, 1961.

Rehearing Denied August 30, 1961.


293 F.2d 295

W. L. Gray, Jr., Robert G. Young, Blackwell, Walker & Gray, Miami, Fla., for appellant.

Earl Faircloth, Neal P. Rutledge, Hector, Faircloth & Rutledge, Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The defendant, General Portland Cement Company, appeals from a jury verdict and judgment in a personal injury death action. The complaint alleges that the decedent, Ernest Walker, was drowned when his truck went off the road into a canal because of the defendant's negligence in failing to maintain the road in proper condition or to barricade the road. The defendant's sole contention on appeal is that the trial judge erred in failing to direct a verdict for the defendant on the ground that as a matter of law Walker's contributory negligence was the proximate cause of the accident. We hold that in the circumstances of this case the trial judge properly allowed the jury to decide this issue.

General Portland, a Delaware corporation, manufactures and sells bulk cement. It owns and operates a cement plant in Florida, near Miami. On the plant's premises the dry cement is loaded into large bulk cement trucks and transported throughout southern Florida for sale to General Portland's customers. An independent contractor, Commercial Credit Corporation, owns and operates some of the cement trucks. Commercial Credit employed Ernest Walker as a truck driver. He was a skilled, experienced, professional truck driver.1 Walker was active, hard-working, healthy, and twenty-two years old at the time of the accident.

December 23, 1958, Walker drove home the truck assigned to him, and waited to receive loading and delivery orders from his employer regarding the truck. The day after Christmas his dispatcher

293 F.2d 296
called him at home, late in the afternoon, told him to pick up a load of cement at General Portland's plant, and then take the truck to a station to have a leak in the radiator repaired before delivering the cement. General Portland regularly keeps its plant open for the loading of trucks from seven in the morning until twelve at night. As a common practice, drivers load at night. On the night of the accident Walker arrived at the front gate of the plant at 11:50 p. m., just ten minutes before closing time. He proceeded, as instructed, along the North Entrance Road to the packhouse, or loading platform, where he received a truckload of twenty-one tons of dry cement. After the truck was loaded, he pulled out of the packhouse and drove, as instructed, along the South Exit Road, the regular exit. Witnesses said that he appeared calm, unhurried, in complete control of his faculties, and that he pulled out of the packhouse in a normal fashion. That was the last time Walker was seen alive

In the course of his employment Walker had been in and out of General Portland's plant about six or eight times. He knew that the South Exit Road heads south, straight and level for three hundred feet, then curves eastward and crosses some railroad tracks. Unknown to Walker, but known to General Portland, there was a large dragline at the beginning of this curve, blocking the road and preventing any passage. The dragline had broken down at three o'clock that afternoon. General Portland's employees had abandoned it since they were unable to repair it before quitting time. Not only was is impossible for Walker to get around the dragline, but the road was barely fifteen feet wide, not wide enough to permit a U-turn by a truck fifty feet long and eight feet wide. The guard at the front gate, where the drivers stopped, and the loading foreman in the packhouse, knew the dragline blocked the road but did not warn Walker. An artificial canal, or borrow-pit, dug for General Portland, runs along the west side of the three hundred foot straight stretch on the South Exit Road. The canal is about two hundred to three hundred yards long, twenty-five to thirty feet wide. At the time of the accident it was filled with muddy water fourteen feet deep, with an additional three or four feet of soft mud settlement on the bottom. The canal had no guard rails. The sides were sheer, and there was no support for the bank of the canal.

The South Exit Road is hard-surfaced, unpaved, limerock road. A few days before the accident, however, General Portland dumped Everglades muck, or marl, along the east side of the three hundred foot stretch. Some of the muck fell or was shaken from the dump trucks on the surface of the road causing a large number of slippery spots about three inches thick on the road. The slick spots were dangerous, and the dump truck operator reported the presence of the...

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5 practice notes
  • Cavanaugh v. Jepson, No. 53469
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 1969
    ...215 A.2d 406, 408; Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069, 1071; General Portland Cement Co. v. Walker, C.C.A. 5, 293 F.2d 294, Although the matter now urged by plaintiff has not been heretofore presented to us, we have several times referred to the affirmative defe......
  • Gauck v. Meleski, No. 21158.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 3, 1965
    ...Kuhn v. Telford (Fla.Dist.Ct.App.2d Dist. 1959), 115 So.2d 36, 40; see also General Portland Cement Co. v. Walker (5 Cir. 1961), 293 F.2d 294. We realize that many, if not most, of the statements in the plaintiff's affidavits are patently inadmissible. Nevertheless, our assessment of all th......
  • Ricketson v. Seaboard Airline Railroad Company, No. 25961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 5, 1968
    ...by jurors from a consideration of all the attending facts and circumstances." In General Portland Cement Company v. Walker, 5 Cir., 1961, 293 F. 2d 294, this test is succinctly "A trial judge takes the decision away from the jury when reasonable men cannot differ — then and then only."2 In ......
  • State Road Dept. v. Butingaro, No. 61-578
    • United States
    • Florida District Court of Appeals
    • May 29, 1962
    ...246, 52 So. 975; City of Williston v. Cribbs, Fla.1955, 82 So.2d 150.' See also General Portland Cement Company v. Walker, 5 Cir.1961, 293 F.2d 294. In point number two appellant contends that the trial court erred in denying defendants' requested instruction number twelve, being § 317.43 o......
  • Request a trial to view additional results
5 cases
  • Cavanaugh v. Jepson, No. 53469
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 1969
    ...215 A.2d 406, 408; Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069, 1071; General Portland Cement Co. v. Walker, C.C.A. 5, 293 F.2d 294, Although the matter now urged by plaintiff has not been heretofore presented to us, we have several times referred to the affirmative defe......
  • Gauck v. Meleski, No. 21158.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 3, 1965
    ...Kuhn v. Telford (Fla.Dist.Ct.App.2d Dist. 1959), 115 So.2d 36, 40; see also General Portland Cement Co. v. Walker (5 Cir. 1961), 293 F.2d 294. We realize that many, if not most, of the statements in the plaintiff's affidavits are patently inadmissible. Nevertheless, our assessment of all th......
  • Ricketson v. Seaboard Airline Railroad Company, No. 25961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 5, 1968
    ...by jurors from a consideration of all the attending facts and circumstances." In General Portland Cement Company v. Walker, 5 Cir., 1961, 293 F. 2d 294, this test is succinctly "A trial judge takes the decision away from the jury when reasonable men cannot differ — then and then only."2 In ......
  • State Road Dept. v. Butingaro, No. 61-578
    • United States
    • Florida District Court of Appeals
    • May 29, 1962
    ...246, 52 So. 975; City of Williston v. Cribbs, Fla.1955, 82 So.2d 150.' See also General Portland Cement Company v. Walker, 5 Cir.1961, 293 F.2d 294. In point number two appellant contends that the trial court erred in denying defendants' requested instruction number twelve, being § 317.43 o......
  • Request a trial to view additional results

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