Globe Cereal Mills v. Scrivener, 5420.

• Decision Date: 18 December 1956
• Docket Number: No. 5420.,5420.
• Citation: 240 F.2d 330
• Parties: GLOBE CEREAL MILLS, Appellant, v. Shirlee S. SCRIVENER, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

240 F.2d 330 (1956)

GLOBE CEREAL MILLS, Appellant, v. Shirlee S. SCRIVENER, Appellee.

No. 5420.

United States Court of Appeals Tenth Circuit.

December 18, 1956.

Lowell White, Denver, Colo. (Walter A. Steele, Denver, Colo., was with him on the brief), for appellant.

Fred M. Winner, Denver, Colo. (Max D. Melville, Denver, Colo., Dan Milenski and Marvin G. Ping, Cortez, Colo., were with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

The plaintiff brought this action to recover judgments for the death of her husband and personal injuries growing out of an automobile-truck accident in southwestern Colorado. Judgment was in favor of the plaintiff on both claims. The principal grounds for reversal are that there was insufficient evidence to show negligence in the operation of defendant's truck and that the driver of the car in which the plaintiff was riding was guilty of contributory negligence as a matter of law.¹

The accident occurred on a hard-surfaced highway on a clear day, shortly before 11:00 o'clock in the forenoon. The highway runs generally in a southeast-northwest direction, and for convenience we shall refer to it as east-west. Immediately prior to the accident, plaintiff and her husband were traveling in an easterly direction in a Hudson automobile, and were approaching the crest of a hill which obscured a view of the highway beyond the crest in both directions. Near the top of the hill, on the south side, were substantial improvements, including grain elevators and warehouses.

Defendant's vehicle, which was a tractor-trailer combination outfit, fully loaded with grain, with an overall length of sixty feet and a total weight of 74,000 pounds, was proceeding in a westerly direction on the right side of the highway, and, when within approximately one hundred feet of the crest of the hill, made a left turn to enter upon the premises south of the highway. The driver of the truck testified that in making the left turn, the tractor portion of the truck proceeded at an angle across the east bound lane of traffic. That prior to making the turn he did not observe an approaching automobile from the west. That he was in low gear and was driving from three to four miles per hour when he started to make the left turn. That when he was about four or four and one-half feet into the east bound lane of traffic he still saw no vehicle approaching from the west and was about to continue to cross the highway when he observed a car approaching from the west, about one hundred feet away. At that time he applied his brakes in order to stop, leaving the remainder of the road for the oncoming car. He said that in his opinion the impact between the cars took place at about the center of the left lane of traffic "a little more or a little less". He observed the oncoming car "trying to cut to the right but not having much luck at it". He stated that the left front bumper of the Hudson car struck the left front bumper of the truck twelve or fourteen inches from its end. The impact ripped the left front tire of the truck and the axle was badly bent backward. The front end of the truck was moved some distance to the left by the impact, but not the trailer. The left side of the Hudson car was demolished. It came to a stop about seventy-five feet beyond the point of impact. The marks on the highway indicated that the point of impact may have been about two feet from the south edge of the pavement. The evidence varied to some extent as to the distance which the force of the impact moved the front end of the tractor laterally. One witness said the skid marks showed a lateral movement of about one foot and the vehicle moved ahead about eight feet after the impact, and that he did not observe any brake marks left by the trailer. The driver of the truck and a highway patrolman estimated that the front end of the tractor was pushed to the left about eight feet, but the tractor was moved very little by the impact. The import of the driver's testimony is that he was at a stop at the time of the collision. A photograph indicates that the rear wheels of the tractor, which was twenty feet in length, were at or beyond the center of the east bound lane of traffic and not far from the point of impact. The front end of the trailer was well across the left side of the highway after the collision. The tracks of the Hudson automobile showed that it began to swerve to the right when about eighty feet away from the turning tractor, and barely missed avoiding it entirely. The evidence varies as to the distance that the drivers of the two vehicles could have seen each other. It is clear that either driver could have seen the other vehicle, or a portion of it, a considerable distance away.

Where fair minded persons may form different opinions and draw different conclusions or inferences from facts, the question of negligence, contributory negligence and proximate cause is for the jury. Every inference fairly deducible from the evidence is to be drawn in favor of the judgment. Yockey Trucking Co. v. Handy, 128 Colo. 404, 262 P.2d 930; Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403; Book v. Paddock, 129 Colo. 84, 267 P.2d 247. We think the evidence is ample to sustain the finding of negligence on the part of defendant's driver. The road was well known to him; he knew that the hill obscured his view to the west and that he was not able to see oncoming traffic until a short time before it reached the crest of the hill. If he was traveling at the rate of four miles per hour, he would cover approximately six feet per second. The east lane at this point was ten to twelve feet wide and the driver estimated that his truck was struck at about the center of this lane, which distance would be traveled in very little more than a second's time, even at an angle. If the jury believed, as it had a right to believe, that the Hudson car was traveling at a speed of fifty to fifty-five miles per hour, it was less than one hundred feet away and in full view when the truck entered its lane of traffic, and the physical evidence indicates it was about that distance away when it began to swerve to the right, although the truck driver testified that he first saw the oncoming car when it was about one hundred feet away. From all the evidence, including the location of the truck after the collision, and the driver's testimony, the jury might have concluded that the truck driver should have seen the oncoming car before making the left turn and that the truck was moving ahead at the time of the impact.² Vehicles being driven on an open highway may assume that those which they are about to meet and pass will remain on the right side of the road, as required by the Colorado Statute, C.R.S. 13-4-38. The driver of the Hudson automobile was not required to reduce speed until it became plainly evident that the oncoming vehicle was going to turn to the left side of the road. When a driver leaves his lane of traffic and turns into the lane for oncoming traffic, he must exercise care to avoid colliding with other vehicles traveling where they had a right to travel. 5 Am. Jur., Automobiles, § 323; Bradley v. Schmidt, 223 Ky. 784, 4 S.W.2d 703, 57 A.L.R. 1100, Annotation, 1106.

The Supreme Court of Colorado has said that driving on the left side of the road is presumptive evidence of negligence. Ankeny v. Talbot, 126 Colo. 313, 250 P.2d 1019; Dottavio v. Lohr, 122 Colo. 294, 222 P.2d 428. Although the rule of these cases may not be applicable when a left turn is being made, they illustrate the extent to which the courts fix responsibility upon drivers entering the opposite lane of traffic. In Boyd v. Close, 82 Colo. 150, 257 P. 1079, 1080, it was said that "If cars approach each other on a straight track, each on the right-hand side of the road, and neither turns, no question of precedence can arise. But he who turns, thus transferring the other from his left to his right, must yield. Otherwise, no rule governs, and `the race is to the swift and the battle to the strong.' * * *"

The defendant urges that the testimony of the plaintiff shows that the driver of the Hudson car was guilty of contributory negligence. Her testimony was that her husband was driving...