Gentry v. Jett

• Decision Date: 12 January 1960
• Docket Number: No. 16304.,16304.
• Citation: 273 F.2d 388
• Parties: Albert Frank GENTRY, Appellant, v. Charles R. JETT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

273 F.2d 388 (1960)

Albert Frank GENTRY, Appellant, v. Charles R. JETT, Appellee.

No. 16304.

United States Court of Appeals Eighth Circuit.

January 12, 1960.

Case submitted on the record and briefs without oral argument.

Before GARDNER, WOODROUGH, and VOGEL, Circuit Judges.

GARDNER, Circuit Judge.

This was an action to recover damages for personal injuries suffered by appellant. The facts, so far as pertinent to the issues raised on this appeal, are substantially as follows. Appellant, as an employee of appellee, was driving a truck loaded with cucumbers from Wickes, Arkansas, bound for Wichita, Kansas. At a railroad crossing near Tulsa, Oklahoma, his truck came in collision with a freight train of the St. Louis-San Francisco Railway Company, resulting in serious personal injury to appellant. He thereafter brought action in the Sebastian Circuit Court, Fort Smith District, State of Arkansas, against the railway company and in his complaint alleged:

"* * * that the said accident was the sole and proximate result of careless and negligent acts by the said agents, servants and employees of the defendant, St. Louis-San Francisco Railway Company, acting within the scope of their employment; that the said acts of negligence were as follows:

"(a) That said defendant, through its agents, servants, and employees, carelessly and negligently failed to signal the approach of said freight train to said Oklahoma State Highway 11 as required by law.

"(b) That the defendant\'s servants, agents and employees carelessly and negligently failed to maintain a lookout as required by law.

"(c) That the defendant\'s agents, servants and employees carelessly and negligently operated said freight train at an excessive, unlawful and high rate of speed under the circumstances there existing.

"(d) That the defendant carelessly and negligently failed to maintain said crossing in proper condition and permitted it to be in a dangerous and hazardous state of repair

"That the aforesaid careless and negligent acts were the sole proximate cause of the accident which occurred between the truck being operated by said plaintiff and the defendant\'s freight train, resulting in severe and permanent injuries to the plaintiff as hereinafter set forth more fully."

The railway company by its answer denied all acts of negligence attributable to it and alleged that the accident was caused solely by the acts of negligence of the plaintiff in that action or in the alternative that the plaintiff was guilty of such contributory negligence as to bar his right of recovery.

The action was tried to the court without a jury, a jury being waived, and resulted in findings and judgment in favor of the plaintiff in that action and against the St. Louis-San Francisco Railway Company in the sum of $4,500.00. Upon the entry of the judgment the railway company paid the judgment in full and the plaintiff personally satisfied the same by endorsement. The appellee herein was not joined with the railway company in the action in which plaintiff recovered judgment.

Some four months subsequent to the recovery of judgment against the St. Louis-San Francisco Railway Company, appellant brought this action in the United States District Court for the Western District of the State of Arkansas against appellee, the owner of the truck which appellant was driving at the time of the accident as appellee's employee. Hereinafter, we shall refer to the parties in this second action as plaintiff and defendant, respectively.

In his complaint in the instant action plaintiff alleged that the accident resulting in his injuries was caused by the negligence of defendant, in that:

"* * * the truck which defendant furnished to the plaintiff by the terms of the contract previously mentioned was equipped with defective brakes and the defendant had actual, positive knowledge that the brakes were defective and in need of repair, but that the defendant negligently failed and omitted to have the needed repair work done. * * * That the defendant, although knowing that the brakes were defective and in need of repair, wholly failed, neglected and omitted to warn this plaintiff of the hidden defect in the brakes and that the negligence of the defendant in failing, neglecting and omitting to warn the plaintiff of the defective condition of the brakes was the sole, direct and proximate cause of the accidental injuries sustained by the plaintiff."

In due course defendant interposed a motion to dismiss the action on the following grounds:

"I. That the complaint fails to state a claim upon which relief can be granted; that as shown by the complaint filed herein, this suit is based upon alleged damages for personal injuries received by the plaintiff in an accident that happened on June 22, 1958, near Tulsa, Oklahoma, when the truck belonging to the defendant, Charles R. Jett, and being driven by the plaintiff, Albert Frank Gentry, collided with a freight train at a crossing on Oklahoma State Highway No. 11, said freight train being a train of the St. Louis-San Francisco Railway Company.

"II. That on October 3, 1958, the plaintiff filed his suit in the Sebastian Circuit Court, Fort Smith District, being case No. 2340, against the St. Louis-San Francisco Railway Company in which he alleged the same cause of action for damages, alleging in said suit that the accident was caused and occasioned by reason of the negligence of the defendant railway company. That answer was filed thereto by the railway company and judgment was taken against the railway company and in favor of the plaintiff for his damages in the sum of Four Thousand Five Hundred ($4,500.00) Dollars, and said

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