Greyhound Corporation v. Sparks, 18037.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: RIVES, , and JONES and WISDOM, Circuit
• Citation: 283 F.2d 44
• Parties: GREYHOUND CORPORATION, Appellant, v. Howard SPARKS, Administrator, Appellee.
• Docket Number: No. 18037.,18037.
• Decision Date: 03 October 1960

283 F.2d 44 (1960)

GREYHOUND CORPORATION, Appellant,
v.
Howard SPARKS, Administrator, Appellee.

No. 18037.

United States Court of Appeals Fifth Circuit.

October 3, 1960.

A. Longstreet Heiskell, Memphis, Tenn., Sam Lumpkin, Tupelo, Miss., Shepherd, Heiskell, Williams, Beal & Wall, Memphis, Tenn., Lumpkin, Holland & Ray, Tupelo, Miss., of counsel, for appellant.

Floyd W. Cunningham, Booneville, Miss., Cunningham & Cunningham, Booneville, Miss., of counsel, for appellee.

Before RIVES, Chief Judge, and JONES and WISDOM, Circuit Judges.

RIVES, Chief Judge.

At about 6:30 o'clock on Sunday evening, August 3, 1958, Johnny A. Sparks and his friend and kinsman, Charles Dickinson, were killed in an intersection collision between an automobile occupied by Sparks and Dickinson and a bus operated by appellant. The intersection is in a rural section of northwest Alabama. The bus was en route from Birmingham, Alabama, to Memphis, Tennessee, and was proceeding west over U. S. Highway

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78.¹ The automobile was northbound on Alabama Highway 19. After a full opinion setting forth in detail its findings of fact and conclusions of law,² the district court entered judgment against the appellant for the wrongful death of Sparks in the amount of $20,000.00. We hold that the district court erred in arriving at the ultimate question of proximate cause through an erroneous process of legal reasoning or a misinterpretation of the legal significance of the evidentiary facts.³

Visibility at the intersection was thus described in the opinion of the district court:

"In the southeast quadrant formed by this intersection the ground was higher than the surface of the intersection and higher than the surface of either highway approaching the intersection. This high ground was topped by trees and undergrowth. As shown by the photographs introduced, some of these trees, pine and oak, were more than 20 feet tall. At a point 50 feet South of the centerline of Highway 78 and on Highway 19 this ground was about 8.2 feet above the surface of the highway. At a point 50 feet East of the center-line (sic) of Highway 19 and on Highway 78, it was 7.2 feet above the roadway. This high ground and the growth thereon restricted seriously the visibility to the left, for a vehicle driver approaching on Highway 78 from the East, and to the right of such a driver, approaching from the South on Highway 19."

Negligence on the part of Dickinson, whom the district court found to be the driver of the automobile, was described in the opinion as follows:

"It is uncontradicted that the automobile failed to stop for the `Stop\' sign at the south entrance to this intersection. It laid down skid marks about 35 feet in length. These began just south of the `Stop\' sign and ended at the point of impact, about 2 feet north of the center-line (sic) of Highway 78. Its speed was variously fixed from 30 to 40 miles per hour to, as one witness said, `terrific\'. From the skid marks and testimony it seems clear that this automobile entered the intersection at a speed no less than 40 miles per hour. The driver of this automobile was negligent. But, there is no evidence which tends to show that Sparks, at any time, had knowledge of facts which were sufficient to charge him with the duty to anticipate that Dickinson would be reckless or negligent. Thus, the negligence of Dickinson cannot be imputed to Sparks. Johnson v. Battles, 255 Ala. 624, 52 So.2d 702; Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530 and cases there cited."

The district court found that the driver of the bus was also negligent, and that his negligence was a concurring proximate cause of the death of Sparks, as follows:

"Clearly the bus was exceeding the posted speed of forty miles per hour. Thus the driver may have forfeited any right of way he had through this intersection. Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 175 So. 358; § 18, Title 36, Code of Alabama, 1940. It is clear also

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that this driver could not have had `during the last fifty feet of his approach\' to this intersection a `clear and uninterrupted view\' of traffic from the South upon Highway 19 `for a distance of two hundred feet from such intersection.\' § 5, Title 36, Code of Alabama, 1940. This statute may have required a greatly reduced speed for the approach to and entrance into this intersection. But, even if the view to the left had been clear and the speed reduced, it would not have helped the driver since he was not looking to the left at all. He never saw the automobile. It is probable, if the driver had been exercising due care in looking to the south on Highway 19, that he could have safely turned the bus to the right onto the wide asphalt and gravel apron and thus avoid the collision. Common prudence, due care or reasonable care, whatever it is called, demanded, coming up out of defilade, approaching the intersection in an `almost total blind spot\', as he described it, that the bus driver give warning of the approach of his vehicle. This he did not do, although he knew that this was a `dangerous\' intersection. Again, it appears probable that a prompt application of the brakes of the bus, if the driver had been reasonably alert, and if he had approached at a reasonably safe speed, would have sufficed to avoid this violent collision."

Assuming to be true all of the district court's findings of evidentiary fact, it affirmatively appears that the sole proximate cause of Sparks' death was the negligence of the driver of the automobile. Our reasons for that conclusion will be stated at length.

The speed limit both for the bus and for the automobile, while traveling along the respective highways prior to the immediate vicinity of the intersection, was sixty miles per hour.⁴ At the intersection, the driver of the automobile was under a legal duty to stop and to yield the right of way to the bus.⁵

We do not agree with the district court that the driver of the bus may have

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forfeited this right of way. The driver of a vehicle traveling at an unlawful speed forfeits any right of way which he might otherwise have as being the driver of the vehicle on the right,⁶ but there is no similar provision for the forfeiture of the right of way possessed by the driver of a vehicle on a main traveled or through...