Glynn v. Krippner, 9315.

• Decision Date: 19 July 1932
• Docket Number: No. 9315.,9315.
• Citation: 60 F.2d 406
• Parties: GLYNN v. KRIPPNER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

60 F.2d 406 (1932)

GLYNN v. KRIPPNER et al.

No. 9315.

Circuit Court of Appeals, Eighth Circuit.

July 19, 1932.

Thomas H. Quinn, of Faribault, Minn., for appellant.

Raymond A. Scallen, of Minneapolis, Minn., for appellees.

Before STONE and KENYON, Circuit Judges, and OTIS, District Judge.

OTIS, District Judge.

The parties will be designated in this opinion as they were in the District Court. The appellant was there the plaintiff; the appellees were the defendants. The plaintiff brought suit in the District Court against defendants to recover damages for personal injuries resulting from a collision at a highway intersection between a truck plaintiff was driving and an automobile driven by one of the defendants. The facts developed by the evidence, as set out in a condensed statement to which the parties have agreed, were as follows:

On March 19, 1930, the plaintiff was driving a truck in a northerly direction on state-aid road No. 23, which intersects state-aid road No. 30, which runs east and west. Both roads are in Rice county, Minn. The defendant Krippner was driving in a westerly direction on state-aid road No. 30, and at the intersection of the two highways the cars came into collision. This was about 3:30 o'clock in the afternoon. The plaintiff testified that he first looked to the right when he was 100 yards south of the intersection, and that at that time he saw no car; that he next looked when he was some 20 feet south of the intersection, and that he then saw the defendants' car about 100 or 125 feet to his right, approaching the intersection; that as he (the plaintiff) was about to enter the south line of road (No. 39) at the intersection, he looked again and saw the defendants' car about 60 feet back from the intersection; that he (the plaintiff) could have stopped his car in 12 or 15 feet; that the defendants' car was coming at least 50 miles an hour and did not slacken speed; that the intersection was in the open country, and there were no other cars in sight at the time of the collision; that there was nothing which would seriously obstruct the view of either of the drivers. The plaintiff stated that he realized the speed of the defendants' car at the time he saw the car and before he himself had entered the intersection, but that he thought he could get across the road in time. He said that he was not relying upon the defendants' car slowing down.

At the trial, at the close of the plaintiff's case and the close of the whole case, defendants moved for a directed verdict on the theory that upon the evidence plaintiff was guilty of contributory negligence as a matter of law. These motions were denied. The case was submitted to the jury, which returned a verdict for the plaintiff awarding him damages in the amount of $1,600. Defendants then moved for judgment non obstante veredicto. That motion was sustained, the trial court, in passing on that motion, holding that the plaintiff upon the evidence was guilty of contributory negligence as a matter of law.

Two questions are presented on this appeal. The first is whether the District Court rightly ruled that the plaintiff as a matter of law was guilty of contributory negligence. The second is, assuming an affirmative answer to the first question, Did the District Court have jurisdiction to give judgment for the defendants notwithstanding the verdict?

1. It is so well settled as to require no citations of authorities that, generally speaking, questions of negligence and contributory negligence are for decision by the jury. 45 Corpus Juris, 1299. "It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court." Grand Trunk Railway Company of Canada v. Ives, 144 U. S. 408, 417, 12 S. Ct. 679, 683, 36 L. Ed. 485. "The question of contributory negligence, like every question of negligence, is ordinarily for the jury; and it is only when there is no substantial conflict in the evidence which conditions it, and when, from the undisputed facts, all reasonable men, in the exercise of a fair judgment, would be compelled to reach the same conclusion, that the court may lawfully withdraw it from them." Cary Bros. & Hannon v. Morrison (8 C. C. A.) 129 F. 177, 181, 65 L. R. A. 659; Interstate Power Company v. Thomas (8 C. C. A.) 51 F.(2d) 964, 970.

Whether the plaintiff was guilty of contributory negligence as a matter of law depends then on the answer to the question: Can any reasonable man conclude from the facts and circumstances in evidence that he used the care an ordinarily careful and prudent man would have used? That is the question which upon the record this court must answer now. That is the question which the District Court twice answered in the affirmative when it denied motions for directed verdict and finally in the negative when, upon fuller consideration, it sustained the motion for judgment notwithstanding the verdict.

In Interstate Power Company v. Thomas, supra, where the same question was involved, this court said that: "When a court assumes to say that reasonable men in exercising their fair and impartial judgment could not differ on a question of fact such as is here presented, it should be very sure of its ground. A layman's opinion on a question of fact may be fully as reasonable as a court's opinion." In the present case the issue of plaintiff's contributory negligence was submitted to the jury and by the jury resolved in plaintiff's favor.

Contributory negligence may be so clear from the evidence in a case that unquestionably all reasonable men would concur there was such negligence. For example, one who does not look and listen before he drives across a railway track and does not stop if otherwise he is not sure a train is not dangerously near, is certainly negligent. Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66, 70, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645. The cases are few, however, where negligence is that obvious. In the great majority of cases in which the question is presented reasonable men will differ as to which of two possible courses an ordinarily careful and prudent man would have taken under the circumstances present.

This case, we think, belongs to the majority. It is debatable whether an ordinarily careful and prudent man would have taken the course the plaintiff took. Being debatable, the question rightly was submitted to the jury.

The collision in which the plaintiff suffered injury was at the intersection of public highways. When the plaintiff was 20 feet south of the intersection defendants were 125 feet east of the intersection. Defendants' car was then at least five times as far from the point the paths of the two cars crossed as was plaintiff's truck. For the plaintiff to proceed was but to do what the average man might well have done. As he was about to enter the intersection, he again looked and saw that the approaching car was 60 feet from the intersection. It was not slackening speed. Its rate of speed was not less than 50 miles an hour. His own speed (exactly what his speed was the record does not disclose) and other facts were such that he thought he could get across without collision.

When we reflect that, if the defendants' car was indeed traveling 50 miles an hour it was moving at the rate of 73 feet per second, and that, if plaintiff's car was traveling only half so rapidly, it was moving more than 36 feet per second and that therefore plaintiff's decision as to what to do, whether to go on or to apply the brakes and bring his truck to a sudden stop, perhaps in the very path of the on-coming automobile, must be made and then acted on in a second's time, we realize that this time element is a most important circumstance to be considered in determining whether there was ordinary care. It is an element all too likely to be overlooked when the situation is viewed in retrospect in the slower tempo of a trial or in the quiet of judicial chambers. He who would decide whether another has used ordinary care at a highway intersection should make that decision, not in his library, not by the aid of diagrams and models which he slowly moves by hand upon his diagrams, not in a place where a hundred feet seems no little distance, but in an automobile passing an intersection at 30, 40, or 50 miles an hour. He will then know that before one has time even to conceive the nature of an emergency suddenly arising both automobiles involved either will have collided or be far past the point where their paths intersect. He will hardly decide then that one course of action rather than another is so clearly indicated that reasonable minds could not differ.

No two cases of this character are identical in their facts. Where, as especially is true in cases of this character, the slightest difference in the facts determines whether one or another course is the more prudent, precedents are of little aid. We do not look into the books to determine whether one has used ordinary care in a given set of circumstances but to the circumstances and to the standards indicated by common...