Hamblen v. Kazlauski

• Decision Date: 08 October 1958
• Docket Number: No. 12307.,12307.
• Citation: 259 F.2d 754
• Parties: Robert HAMBLEN, Plaintiff-Appellee, v. Alex KAZLAUSKI, individually, and Alex Kazlauski, Alex Kazlauski, Jr. and Stanley Kazlauski, Co-partners doing business under the name of Vale Packing House Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

259 F.2d 754 (1958)

Robert HAMBLEN, Plaintiff-Appellee, v. Alex KAZLAUSKI, individually, and Alex Kazlauski, Alex Kazlauski, Jr. and Stanley Kazlauski, Co-partners doing business under the name of Vale Packing House Company, Defendants-Appellants.

No. 12307.

United States Court of Appeals Seventh Circuit.

October 8, 1958.

Kenneth B. Hawkins, Chicago, Ill., Palmer C. Singleton, Jr., Hammond, Ind., Tenney, Sherman, Bentley & Guthrie, Chicago, Ill., Travis, Tinkham & Singleton, Hammond, Ind., for appellants.

Daniel F. Kelly, Hammond, Ind., Louis G. Davidson, Chicago, Ill., for appellee.

Before MAJOR, FINNEGAN and HASTINGS, Circuit Judges.

HASTINGS, Circuit Judge.

In this diversity action plaintiff (appellee) sought recovery of damages for personal injuries and property loss sustained as the result of a collision between a tractor-trailer unit owned and operated by him, and a cattle truck owned by defendants (appellants) and driven by one of them, in the early afternoon of July 12, 1955, near the intersection of U. S. Highways No. 30 and No. 35 in Starke County, Indiana. The jury found defendants guilty and assessed plaintiff's damages at $40,000, upon which verdict the court entered judgment. Defendants' motion for a new trial was denied, and this appeal followed.

Defendants did not move for a directed verdict either at the close of plaintiff's case or at the close of all the evidence, nor did they move for a judgment notwithstanding the verdict after the jury found for plaintiff. This appeal rests solely on the trial court's denial of defendants' motion for a new trial.

Among the allegations of negligence charged in the complaint are that defendants were guilty of negligence in not giving a proper signal within 100 feet of a crossing of his intention to turn left, and in failing to keep a lookout for traffic approaching from the rear. In their brief at page 28, defendants "concede that the driver of defendant's truck was guilty of negligence * * * (setting out the foregoing two charges) * * * as charged in plaintiff's complaint." In their reply brief at pages 7 and 8, defendants extend their concession by stating: "In our admission of defendants' negligence we did not limit the admission to failure to give a hand signal within 100 feet of the crossing of his intention to turn left, or in failing to keep a lookout for traffic approaching to the rear. We admitted defendants' negligence in respect to all the negligence charges in the complaint. If there is any doubt about our admission, it may be considered now as so admitted." Similar concessions were made in oral argument on this appeal.

Again, at page 8 of their reply brief, defendants state the essence of their first contested issue as follows: "We hold no brief for what defendants' driver did or did not do at the time and place in question and prior thereto. Our contention is and has been that the uncontradicted evidence shows plaintiff's conduct was negligent as a matter of law during all the time involved in this occurrence and that his negligence was the direct proximate cause, or at least a proximate contributing cause, to the accident. We further contend that such conduct was in violation of mandatory statutes without proof by plaintiff of any evidence to excuse or exculpate him."

It is not necessary in our disposition of this appeal to make any extended statement of the facts surrounding this accident. We have carefully read the entire transcript of the evidence and the following account of the incident in question is made abundantly clear to us. Road No. 30 was a two-lane concrete highway running east and west with rather wide gravel shoulders. Road No. 35 made a T-intersection running to the north and circling back to the west and south and crossing Road No. 30 over an overpass to the west of the intersection. A yellow "no-passing" line was painted on the south side of the white center line on Road No. 30 from a point some distance west of the overpass to about the intersection with Road No. 35, indicating that eastbound traffic should not cross over it.

Plaintiff was following defendants' truck and both were traveling east on Road No. 30 at a speed of approximately 40 miles an hour. Defendants' truck slowed down slightly and plaintiff sounded his horn and speeded up his tractor-trailer unit and pulled to his left onto the north side of the pavement and started to pass defendants' truck. All this occurred some 800 to 1000 feet west of the overpass and several hundred feet west of the beginning of the yellow line. As plaintiff pulled alongside defendants' truck, defendant increased his speed, crossed over to the north side of the road, and brushed his truck against plaintiff's outfit causing plaintiff to temporarily lose control and drive partially off the pavement to the north with at least the left half of his unit traveling on the gravel shoulder. At this juncture defendant pulled his truck back on the south (his right) side of the pavement. Plaintiff tapped his brakes lightly but did not apply them with force because of the danger of jackknifing his trailer. Somewhere near the point of the impact the yellow line first appeared on the pavement on its eastward course. Plaintiff continued east trying to regain control of his tractor-trailer (gross weight with full cargo of eggs about 56,000 pounds), and when he had about reached the overpass he had almost all of it back on the north side of the pavement. Both vehicles continued to run alongside each other for a short distance at about the same speed and, after going under...