Grounds v. Roth

• Decision Date: 02 February 1954
• Docket Number: No. 4734,4735.,4734
• Parties: GROUNDS v. ROTH. WILSON & CO., Inc. et al. v. FRANTZ.
• Court: U.S. Court of Appeals — Tenth Circuit

210 F.2d 239 (1954)

GROUNDS v. ROTH.

WILSON & CO., Inc. et al. v. FRANTZ.

Nos. 4734, 4735.

United States Court of Appeals Tenth Circuit.

February 2, 1954.

Robert D. Looney and Paul C. Duncan, Oklahoma City, Okl. (Clayton B. Pierce, Fred M. Mock and James W. Shepherd, Oklahoma City, Okl., on the brief), for appellants.

John F. Butler, Oklahoma City, Okl. (Butler, Rinehart & Morrison, Oklahoma City, Okl., on the brief), for appellees.

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

HUXMAN, Circuit Judge.

These were actions for personal injuries arising out of a collision between two trucks on U. S. Highway No. 81 about 1.5 miles North of the town of Renfrow, Oklahoma. The accident occurred about 10:20 p. m. Appellee, Eldo Frantz, in the course of his employment was driving a truck, the property of Irene Roth and Cy Roth, d/b/a The Mid-Kansas Hatchery and Produce Company. He had left the emergency brake on, causing the brake band lining to catch on fire. He was driving North at the time. When he noticed smoke coming up through the floor boards, he pulled partly off the paved highway to the East, stopped and proceeded to put out the fire. Because of a defect in the motor, he was unable to start the truck again. While he was thus parked, appellant, Oscar James Grounds, coming from the South in a truck belonging to his employer, Wilson and Company, Inc., crashed into the rear of the parked truck with serious injury to himself.

In Number 4734 Grounds sought recovery of damages to himself from the Roths on the ground of the negligence of their employee, Eldo Frantz. In Number 4735 Eldo Frantz sought recovery of damages to himself from Grounds and Wilson and Company, Inc., his employer, because of the negligence of its employee, Grounds, in the operation of its truck. Trial was had to a jury. In Number 4734 the jury returned a verdict for the defendant upon which judgment was entered. In Number 4735 it returned a verdict for plaintiff upon which judgment was likewise entered. In each case the losers have appealed. The issues in each case were the negligence of Frantz, the driver of the Roth truck, and the contributory negligence, if any, on the part of Grounds, the driver of the Wilson and Company truck.

Appellants in each case urge two grounds for reversal. (1) The court committed error in its comments on the evidence to the prejudice of appellants and (2) the court erred in its instructions.

Before discussing these issues, a statement of the facts about which there is no dispute might well be helpful. Title 47 § 121.8, Okl.St.Ann., dealing with parking or standing of trucks, etc., upon the highway provides that on any highway outside of the business or residence district no person shall stop, park or leave standing any vehicle attended or unattended upon the paved or main travelled part of the highway, when it is practical to stop, park or leave such vehicle off the highway.

Title 47 Okl.St.Ann. § 148, provides that red flares, lanterns, or in the place of lanterns, red burning fusees shall be carried by buses, trucks etc., and for the attachment of three red cloth flags or portable reflector units clearly visible for at least 500 feet under normal conditions at night, and it further provides that where a truck, etc., is left parked upon the highway outside of any municipality at a time when lighted lamps are required a lighted fusee shall be immediately placed on the roadway and, as soon thereafter as possible and within the burning period of the fusee, lighted flares shall be placed as directed by the statute.

Frantz did not drive his truck off the paved portion of the highway and park it on the shoulder, which was of ample width and in such condition that it could have been parked thereon. Neither did he at any time put out fusees or flares, although he had them with him. He had with him a boy named Ralph Robbins, age 19 years, whom he sent back to flag oncoming traffic. Robbins testified that the tail lights were not burning and that there were no reflectors on the back of the truck. Lawrence Spray, a member of the highway patrol who investigated the accident, also testified that the truck had no reflectors or rear lights. These facts as narrated are without dispute.

Whether there was need to park the truck partly on the highway, notwithstanding the ample shoulders and the positive mandate of the statute, how near to the center line of the middle of the highway the truck in fact was, whether there was an excuse for not immediately putting out fusees as required by law were disputed issues in the case on which there was conflict in the evidence. Thus while Frantz testified that the left wheels of the truck were parked on the East edge of the highway, a witness, Hamilton, testified that he was coming from the North travelling on the West side of the highway; that he was just about opposite to the parked truck when the crash occurred and that the biggest part of the truck was on the pavement. Mrs. Genevieve Kurran, riding with Hamilton in the car, testified that the biggest part of the truck was on the pavement;...