Greene v. Werven

• Decision Date: 19 February 1960
• Docket Number: No. 16289.,16289.
• Citation: 275 F.2d 134
• Parties: G. M. GREENE, Appellant, v. Matt WERVEN, as Parent and Natural Guardian of Lorraine Werven, a Minor, and Phillip Stremich, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

275 F.2d 134 (1960)

G. M. GREENE, Appellant, v. Matt WERVEN, as Parent and Natural Guardian of Lorraine Werven, a Minor, and Phillip Stremich, Appellees.

No. 16289.

United States Court of Appeals Eighth Circuit.

February 19, 1960.

Philip B. Vogel, Fargo, N. D., for appellant.

J. Gerald Nilles, Fargo, N. D., for appellees.

Before JOHNSEN, Chief Judge, and MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This diversity-intersection case, removed from state court, resulted in jury verdicts (in the initial action, in the third-party action, and on counterclaims in both actions) in favor of the plaintiff Lorraine Werven (later Lorraine Werven Shambaugh) and of the third party defendant Phillip Stremich and against the defendant-third party plaintiff G. M. Greene. Greene has appealed from judgments entered pursuant to the verdicts.

The collision took place in the early afternoon of October 9, 1956, at an unobstructed intersection of two gravel nonarterial roads about one-half mile south of Leroy in Pembina County, North Dakota. The day was clear, the sun was shining, and the roads were dry. Lorraine, who was then fifteen years of age and who possessed a North Dakota driver's license recently acquired, was driving a 1953 Chevrolet automobile owned by Stremich. She was proceeding west on the one road. Greene was traveling north on the other road. Lorraine was thus approaching the intersection from Greene's right. Greene was driving a new 1956 two ton heavy duty Dodge truck loaded with six yards of gravel. The Chevrolet and the Dodge collided at the intersection, with the automobile striking the truck on the right rear wheel. The truck came to rest upside down some distance north of the intersection. Both Lorraine and Greene sustained personal injuries and both vehicles were damaged.

Lorraine and Stremich and Lorraine's sixteen year old sister Mae had been working that day in a potato field. Stremich was moving a tractor to another field a few miles away and had asked Mae "to see that" his car was moved there. Mae, who had a permit to drive but not a driver's license, asked Lorraine to drive the car "because she had no driver's license and thought Mr. Stremich would like it better." Neither of the girls had ever driven the Chevrolet before. While Lorraine was taking the car to the other field the accident occurred.

Lorraine testified that she tried the brakes on the Stremich car on two occasions before the accident and "they weren't high like they should be" but that when she put her foot on them again or pumped them once "they were high" and then would operate just like a normal brake and stop the car.

There seems to be no dispute as to the foregoing facts.

So far as the details of the accident itself are concerned, there is some conflict in the evidence. Lorraine testified that she was traveling about 35 miles per hour; that she looked for other traffic when she was about 200 yards from the crossing; that she saw the Greene truck coming; that it was about 300 yards south of the intersection when she first saw it and was going about 30 miles per hour; that "it looked to me it was slowing up so I just went right ahead thinking I had the right of way"; that she did not continue to watch the truck as they both approached the intersection; that she did not slow down from her 35 miles per hour speed but maintained a consistent speed; that when she was about to cross, "the truck shot out in front of me and it was too late to stop"; that at that time she put on her brakes once and they did not work; that there was a second truck on the crossroad; that this second truck was north of the intersection and headed south and "it was stopped with its left signal light flashing"; and that she knew "gravel trucks were hauling on this particular stretch of road".

Greene testified that he was traveling north about 25 miles an hour; that his road had sand holes in it which compelled a reduced speed; that at 25 miles an hour, he could, with the truck loaded, stop in 50 feet; that he could see a half mile down the other road to the east; that when he was 400 feet from the intersection he saw a car approaching from the right and going west; that he "did not pay any particular attention to it that far away" but "knew it was coming"; that when he was about 300 feet from the intersection he thought he looked and saw the car again; that he presumed it was the Stremich car; that he looked again when he was between 75 and 100 feet from the intersection; that the other car was traveling "at least 60 miles an hour"; that it was possible that the other car was going 45 miles an hour; that he had seen a truck coming from the north with its left signal light on to make a left turn; that he put his own signals on for a left turn; that the other truck swung to the left and suddenly stopped; that he saw the Chevrolet coming past that truck; that his own truck was in the intersection first; that the point of impact was "a trifle over halfway north of the center of the intersection"; and that his truck to some extent is topheavy when it is loaded.

The driver of the other truck testified that he noticed the Chevrolet and the Dodge when he was about a quarter of a mile north of the intersection; that the truck was then about the same distance south of the intersection and the Chevrolet close to a half mile east; that the car was going between 45 and 50 miles an hour; that "there is no question but what the truck entered the intersection first"; that he did not think he had signalled "because I sure wasn't ready to turn and this trouble was coming on this intersection"; that the two vehicles would have had to enter the intersection "within a split second of each other"; and that the reason he felt the truck entered the intersection first was because the car hit the truck toward its rear end.

Stremich testified that the brakes on his car were good the morning of the accident when he stopped the automobile in the field; that he had never had any trouble with the brakes; and that he had not had them adjusted, repaired or checked in the three years he owned the car.

A patrolman testified that six days after the accident he had examined the Chevrolet when it was at a body shop; that he got into the car and checked the brakes by stepping on the brake pedal; that they went to the floorboard with no resistance whatever; that he tried pumping them and had very little resistance accumulated; that he did not know whether the brake lines were intact because he did not examine them; that the front end of the car was badly smashed; that he did not open the master cylinder; and that the car had been sitting out since the accident in an open unfenced lot. A deputy sheriff testified that he was called to investigate the accident; that he talked to the plaintiff that afternoon; that she then had said she was traveling between 35 and 40 miles an hour, had seen the truck but thought it was going to stop and she didn't stop because "the brakes were faulty"; and that there was a distance of 85 feet between the spot in the intersection where the accident debris had accumulated to where Greene's truck came to a stop.

Greene, at the conclusion of the testimony, moved for directed verdicts in his favor on the claims against him and on his claims against the appellees, and, after the verdicts and judgments had been entered, also moved for judgment notwithstanding the verdicts or, in the alternative, for a new trial. These motions were all denied. Here he urges that the trial court erred in denying these motions. The appellant's arguments are directed to the inadequacy of the Chevrolet's brakes, to Lorraine's failure to maintain a proper lookout and to yield the right of way to Greene, and to Lorraine's being the agent of Stremich.

As is so often the case in these personal injury actions, the basic question on appeal here is whether the evidence is sufficient to support the verdicts and judgments against the appellant. We once again call attention to the principles governing this situation as enumerated by this court in Coca-Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859, 860-861:

"In considering the question of the sufficiency of the evidence to support the verdict, there are several general rules to be kept in mind. (1) All of the facts which the plaintiff\'s evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts much be drawn in his favor. * * * (2) It is only where the evidence is all on one side or so overwhelmingly on one side as to leave no doubt what the fact is that the court should direct a verdict. * * * (3) The question of negligence is usually one of fact for the jury, and it is only where the evidence, even though it be uncontradicted, is such that all reasonable men must draw the same conclusion from it that the question of negligence becomes one of law for the court. * * * (4) Where inconsistent inferences reasonably may be drawn from the evidence, it is for the jury to determine which of the inferences shall be drawn. * * (5) When the sufficiency of the evidence to make a case for the jury presents a doubtful question of local law, this Court will accept the views of the trial court unless convinced of error. * * * (6) The burden of demonstrating error is upon the appellant. * * *"

Further, as this court has also noted, in United States Fire Insurance Co. v. Milner Hotels, Inc., 8 Cir., 253 F.2d 542, 546-547, questions of negligence and of proximate cause are, under North Dakota law, ordinarily for the jury:

"In relation to what has been said, it must conformingly be borne in mind that under North Dakota law, as generally, negligence and proximate cause are not ordinarily questions which may be taken from the jury. `They become questions of law only when the state of the record is such that reasonable men can draw but one conclusion

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