Halpern v. United States, Civ. 10148.

• Decision Date: 16 March 1955
• Docket Number: Civ. 10148.
• Citation: 129 F. Supp. 326
• Parties: Harry HALPERN, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

129 F. Supp. 326

Harry HALPERN, Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. 10148.

United States District Court, E. D. New York.

March 16, 1955.

Selkowe, Johnson, Zimbalist & Romanoff, Samuel A. Zimbalist, New York City, for plaintiff.

Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., Margaret E. Millus, Brooklyn, N. Y., for defendant.

RAYFIEL, District Judge.

At about 2:40 p. m., on February 10, 1949, the plaintiff's automobile, a 1948 Chevrolet sedan, and a bus, owned by the defendant, and operated by one Private Jerry R. Monnett, of the United States Army, were in collision, and plaintiff brought this action to recover for the resultant damage to his automobile and the injuries sustained by him.

The collision occurred at the intersection of U. S. Route 13 and U. S. Route 40, in the vicinity of a place known as Hare's Corner, near the city of Wilmington, in the State of Delaware.

U. S. Route 13 is a six lane highway and runs north and south. It has three northbound and three southbound traffic lanes, which are separated by a grasscovered mall. The aggregate width of the northbound lanes is approximately forty feet.

U. S. Route 40 is a two lane highway, running generally east and west, at right angles, or nearly so, to U. S. Route 13. It provides one lane for eastbound and another for westbound traffic.

The flow of traffic at the intersection was regulated by two traffic lights, one located over the center of the northbound and the other over the center of the southbound roadway.

There was no regularly timed change of traffic lights at the intersection. It appears that the light remained green for traffic along Route 13, and when a westbound car on Route 40 approached the intersection it would pass over a treadle, whereupon, after a lapse of several seconds, a cycle of light changes controlling traffic on Route 13 was set in motion, first to amber, then to red, and finally back to green, thus permitting westbound vehicles to cross the northbound lanes of traffic on Route 13.

The plaintiff's automobile was being driven by one Irving Goldstein, with the plaintiff seated at his right. It was traveling west and came to a stop about ten feet behind another passenger automobile which had stopped at the intersection, waiting for a change of traffic lights in favor of westbound traffic before proceeding to cross Route 13.

The United States Army bus driven by Private Monnett was the 27th or 28th vehicle of a thirty-bus convoy, which was proceeding in a northerly direction along U. S. Route 13.

Weather conditions were rather poor. According to the report of the weather bureau (Defendant's Exhibit A) based on observations made and records kept at the Newcastle County Airport, one mile from the scene of the accident, snow fell from 9:40 a. m. to 10:15 p. m. on that day; at 1:15 p. m., there was a "trace" of snow on the ground, and at 7:15 p. m. about five inches. Visibility — and this may have been based on observations made at some distance above ground level — was reduced by snow to "½ mile or more from 1:38 to 4:07 p. m."

Sergeant Edward N. Outten, of the Delaware State Police, who arrived at the scene of the accident about ten minutes after it occurred, testified in his deposition (Plaintiff's Exhibit 2) that it was snowing at the time of the accident, and that the highway (U. S. Route 13) was slushy as a result of the traffic.

According to the "Transcript of Operator's report of Motor Vehicle Accident" (Plaintiff's Exhibit 5) the following appear to be some of the facts concerning the condition of the highway and the operation of the U. S. Army bus prior to the collision. Private Monnett was driving north on U. S. Route 13. Under orders of his convoy commander he was directed "to keep up with the Government vehicle directly ahead of me in the convoy through traffic lights, stop signs and all. Just keep closed up, was my orders. I was doing just that, when vehicle No. 2 (Plaintiff's car) tried to cut across the convoy. My W/S (windshield) was covered with snow and ice, and I was going pretty fast, and did not see veh. No. 2, * * *" (Matter in parenthesis added) Monnett maintained a speed of 55 miles per hour up to the very moment of the collision, although, as the report states, the condition of the road was "wet, icy, snowy". Captain Harry C. Trodick, of the United States Army, who reviewed the report, stated therein that "The cause was too much speed considering the bad weather. The accident could have been prevented had the officer in charge used more discretion in the speed of the lead vehicle." (of the convoy)

At page 11 of his deposition Sergeant Outten stated that the maximum rate of speed on Route 13 was 55 miles per hour. On pages 34 and 35 thereof the following questions and answers appear.

"Q. Now, Sergeant, do the laws of the State of Delaware with respect to speed on the highways limit or curtail the rate of speed in the event weather conditions increase the hazard on the highways? A. That's right, sir.

"Q. Is that speed reduced to a rate of speed which would be considered reasonable and careful under the weather conditions and road conditions then prevailing? A. Yes, sir.

"Q. If a person were to travel at a speed of 55 miles an hour at Hare's Corner on February 10, 1949, under the weather conditions as you observed them at the time that you approached Hare's Corner at about 2:45 p. m. would that be a safe rate of speed? A. It would not, sir."

Further on in his deposition (Page 46) Sergeant Outten stated that in the course of a conversation he had with Private Monnett shortly after the accident the latter told him that the traffic light was red as he entered the intersection.

The deposition of Monnett was taken on January 13, 1954, about five years after the accident. His testimony manifested such indecision, evasiveness and lack of forthrightness as to make it unworthy of serious consideration. He answered "I don't recall", or some equivalent, to a majority of the questions asked of him. He was quite sure, however, that the light controlling traffic on U. S. Route 13 was either green or amber immediately prior to or at the time of the collision, although, when questioned by Sergeant Outten shortly after the accident, he stated that it was red. He testified that on several occasions during the run of the convoy he was obliged to stop to clear the windshield of his bus of an accumulation of snow and ice, indicating that visibility was poor.

By reason of the contradictions in his testimony respecting the color of the traffic lights at the intersection immediately prior to and at the time of the accident, and the irreconcilability thereof with the documentary evidence, it is difficult to resolve that question, but I have ...