GFB TRANSPORT COMPANY v. United States

• Decision Date: 03 January 1963
• Docket Number: Civ. No. A-34-60.
• Citation: 213 F. Supp. 42
• Parties: GFB TRANSPORT COMPANY, Inc., an Alaskan corporation, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Alaska

213 F. Supp. 42

GFB TRANSPORT COMPANY, Inc., an Alaskan corporation, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. A-34-60.

United States District Court D. Alaska, Anchorage.

January 3, 1963.

Wayne D. Calderwood, Anchorage, Alaska, for plaintiff.

Warren C. Colver, U. S. Atty., and James R. Clouse, Jr., Asst. U. S. Atty., for defendant.

HODGE, District Judge.

Plaintiff brings this action under the provisions of the Federal Tort Claims Act (28 U.S.C.A. § 1346(b)) for damages to a Kenworth tractor and Aero-Liner semitrailer owned by it on account of negligence of the operators of two military vehicles operated by government employees, one of which was a gasoline tanker and the other a personnel carrier, which were parked on the highway, completely blocking both lanes of traffic. At the conclusion of the plaintiff's case upon trial to the Court defendant moved for judgment in its favor on account of alleged contributory negligence of plaintiff's driver, barring recovery, which issue was submitted to the Court. The negligence of the government agents is not denied.

There is no dispute as to the facts, which may be summarized as follows: The accident causing the damage occurred on January 11, 1960, at a point on the Glenn Highway approximately 148 miles from Anchorage, near the crest of a hill. Plaintiff's driver was engaged in hauling merchandise with the tractor and semitrailer weekly between Anchorage and Fairbanks. This was his 100th trip and the only accident in which he had ever been involved. The highway was covered with hard-packed snow and ice. The time was about 8:00 p. m. It was a bright night and his visibility was very good. With his headlights he could see easily 300 yards ahead. Upon reaching the crest of the hill he was traveling, according to a "speedograph" carried on the truck which accurately records speed and time, at 42 miles per hour. The speed limit in force at such time and place was 50 miles per hour. He had, on the combined rig, 16 braking wheels and could normally stop at 45 miles per hour in about 140 feet, but on icy roads this would take approximately three times as long, or 420 feet, plus additional space up to 560 feet on down grade. The grade of the hill was estimated at 5%. The road was straight, with no crossroads, and the traffic was not heavy. The width of the highway was 25 feet, and of the traveled portion approximately 20 feet.

Upon breasting the crest of the hill he first saw the government vehicles when about 300 feet distant. The personnel carrier was parked on the right-hand side of the highway, facing toward him. The tanker was parked alongside this vehicle, also facing toward him. One of the vehicles had bright headlights burning; the other had none. The highway was completely blocked by these vehicles. There were no flares or other warning devices. The driver was unable to stop, but, finding that he could not pass on either side of the road, he took the last clear chance and attempted to go outside of the vehicles on the right. The front wheel of the tractor struck the end of the tanker as he went by and he ended up in the snow berm with the front end of his rig some 65 feet from the highway and the rear end about 5 feet from the highway, damaging plaintiff's vehicles. He further testified that he could not stop within 300 feet unless his speed was not in excess of 25 miles per hour, and a State Highway officer, called to the scene, testified that his speed was not excessive under normal circumstances, and that to avoid the accident he would need to be going "awfully slow," or almost stop at the crest of the hill.

Defendant relies entirely upon the "assured clear distance ahead" rule, enacted in many states by statute. There was no such statute in force in Alaska but the pertinent portions of the Traffic Regulations promulgated by the Territorial Department of Highways and Public Works, still in effect under Statehood, provided as follows:

"Article VIII—SPEED RESTRICTIONS

"Sec. 2-801—Basic Rule and Maximum Limits.

"(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care."

"(d) The driver of every vehicle shall, consistent with the requirements of paragraph (a) drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions."

Defendant argues that in the absence of such specific statute and at common law and under the regulation requiring the driver of a motor vehicle to use reasonable and ordinary care, the rule accepted by the weight of authority in the United States is that a driver is not exercising ordinary care and is negligent if he proceeds at a speed in the darkness such that he cannot bring his vehicle to a standstill within the distance that he can plainly see objects or obstructions ahead of him by the light of his own headlamps or within the range of his vision.

The rule is well established that ordinarily it is negligence as a matter of law to drive a motor vehicle at such a rate of speed that it cannot be stopped in time to avoid an obstruction discernible within the driver's length of vision. There are, however, exceptions to this rule, from which it appears that the proper application of the rule must depend upon the facts and circumstances of each particular case. For a general discussion of this subject see Annos. 44 A.L.R. 1403; 58 A.L.R. 1493; 87 A.L.R. 900; 97 A.L.R. 546, and (especially as the principle applies to approaching a hill or curve) 133 A.L.R. 967.

Notable among such exceptions, as clearly applicable to the circumstances of the instant case, is the principle announced in the leading case of Hangen v. Hadfield, 1939, 135 Ohio St. 281, 20 N.E.2d 715, holding that the statutory provision that a person must keep his automobile under such control as would enable him to stop within the assured clear distance ahead did not require the driver of a motor vehicle approaching the crest of a hill on a public highway to anticipate that his proper path would be obstructed by another automobile (in this case driven in the opposite direction) in a manner contrary to law. To quote from the opinion:

"As contended by the defendant, it is of course true that as the plaintiff approached the brow of the hill he knew that his view was obstructed thereby. However, it is likewise true that the plaintiff was not required to anticipate that the driver of an approaching motor vehicle would violate the law by obstructing the plaintiff's proper path."

In another Ohio case, Sidle v. Baker, 1936, 52 Ohio App. 89, 3 N.E.2d 537, the principle...