Hammitte v. Livesay

• Decision Date: 20 January 1971
• Docket Number: No. 20195.,20195.
• Citation: 436 F.2d 1134
• Parties: Loretta HAMMITTE, Administratrix, Estate of Arlie Hammitte, Plaintiff-Appellant, v. Chester LIVESAY and Ralph Carl Lynch, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

436 F.2d 1134 (1971)

Loretta HAMMITTE, Administratrix, Estate of Arlie Hammitte, Plaintiff-Appellant, v. Chester LIVESAY and Ralph Carl Lynch, Defendants-Appellees.

No. 20195.

United States Court of Appeals, Sixth Circuit.

January 20, 1971.

James S. Greene, Jr., Harlan, Ky., for plaintiff-appellant; Greene & Forester, Harlan, Ky., on brief.

William A. Watson, Middlesboro, Ky., for defendants-appellees; Watson & Watson, Middlesboro, Ky., on brief.

Before WEICK and McCREE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

Plaintiff-appellant appeals from a judgment for defendants-appellees, entered upon a jury verdict. The action had been commenced by the now deceased Arlie Hammitte, charging that he had been injured when an automobile in which he was a passenger came into collision with a truck being driven by defendant-appellee Lynch, in the course of the latter's employment by defendant Livesay. Two issues were submitted to the jury — whether the driver of the Hammitte automobile had been guilty of contributory negligence — and whether Arlie Hammitte suffered any injuries as a result of the collision. The District Judge told the jury that defendant Lynch was guilty of negligence as a matter of law. The jury's verdict merely recited "We, the jury, find for the defendants Chester Livesay and Ralph Carl Lynch," without indicating whether the verdict was the product of a finding that Hammitte's driver was guilty of contributory negligence, or that Hammitte suffered no injuries, or both.

The errors charged by the appellant are first, the refusal of the District Judge to tell the jury:

"The court instructs the jury as a matter of law that the defendants Chester Livesay and Ralph Carl Lynch are liable in damages to the plaintiff Arlie Hammitte for any injuries to his person and property which he may have sustained in the motor vehicle collision described in the evidence of this case."

and second, his giving of the following instruction:

"The defendants have interposed two defenses to the plaintiff\'s claim: First — they contend that the plaintiff\'s driver had the last clear chance to avoid the injury; i. e., that regardless of the negligence of the defendants, the plaintiff\'s driver, Earl White, could have avoided said collision, had he exercised ordinary care after he saw the truck driven by defendant Lynch, or by the exercise of ordinary care could have seen said truck in a position of peril upon the highway.

* * * * * *

"If the jury believe that Earl White, the driver of the Hammitte car, saw or by the exercise of ordinary care could have discovered defendant\'s motor truck coming onto the highway in time to have avoided colliding with same, by use of the means at his command or within his control, had he exercised ordinary care after he saw or could have seen said truck in a position of peril on the highway, then you will find for the defendants; but unless you so believe, you will find for the plaintiff."

We are of the view that appellant was entitled to the instruction requested and that it was error to give the so-called "last clear chance" instruction. The action was started in the Circuit Court of Harlan County, Kentucky, and was removed to the United States District Court for the Eastern District of Kentucky. Kentucky law controls.

We reverse and remand for a new trial, limited to the question of damages, if there were any caused by the collision.

The collision occurred on October 13, 1966, on highway U.S. 421 in Harlan County, Kentucky. At the scene of the accident, U.S. 421 is 19 feet wide and runs in a straight north and south direction. The accident happened in clear daylight, and a motorist coming into such highway from the west had a clear view to the south for a quarter of a mile. Also, at that point a mine road angled dead into highway 421 from the east-southeast, making a Y intersection. This mine road led to a mine from which defendants were hauling coal on the day of the accident. The following is an account of the happenings prior to and at the time of the collision.

The automobile, owned by decedent Hammitte, and being driven by his friend, Earl White, was proceeding northward on U.S. 421. There was a 60 mile per hour speed limit, and there is no evidence of excessive speed in White's driving. As he approached the area of the mine road, he was following a truck also going north. When this truck indicated its intention to turn left onto the west shoulder of the highway, White reduced his speed to about 35 or 40 miles per hour. This truck, referred to sometimes as truck number two, continued north on the west shoulder and came to a stop close to the rear of the truck then being driven by defendant Lynch, which had also pulled onto the west shoulder of the highway and stopped. Lynch was obviously planning to turn across highway 421 and proceed easterly into and along the mine road. Lynch testified that prior to moving out to cross the highway, his view to the south was impaired by the truck which had pulled up in back of him on the west shoulder. Lynch admitted that without taking any further look, he proceeded to cross the highway and at no time saw or looked in the direction of the Hammitte vehicle approaching from the south. The driver and passengers in the Hammitte car saw Lynch pulling onto the highway and into their path when they were about 35 to 50 feet from the eventual point of impact. The driver first blew his horn and then, in the same instant, realizing that Lynch was not going to stop and his own car could not be stopped in the distance still available to him, put his foot on the accelerator, wrenched his car to the right and tried to pass in front of the crossing truck. His right wheels had gotten partially onto the east shoulder but the right front of the truck hit the left rear door of the Hammitte car, "creasing the door" and bending the fender over the left rear wheel. The Hammitte car's right wheels were in the right ditch, or shoulder, as it proceeded about 100 feet down the road before stopping. Damage to the Lynch truck was consistent with this description of the collision. Our study of the testimony convinces us that the evidence would not justify a factual inference of any conduct on the part of plaintiff's driver less careful than our description of it.

The briefs before us appear to concede that under Kentucky law and the facts of this case negligence of the driver of the Hammitte automobile, Earl White, would be attributable to plaintiff's decedent and bar recovery. We are satisfied, however, that a factfinder, judge or jury would, under Kentucky law, not be warranted in finding White guilty of contributory negligence. In a colloquy after the close of proofs, the District Judge said that defendant Lynch was guilty of negligence that was a proximate cause of the accident. He also disclosed doubts as to the propriety of submitting the question of contributory negligence of the plaintiff's driver to the jury. Defense counsel then, and as he does in his address to us, posited a right to have the question submitted by urging that the jury had the right to disbelieve plaintiff's witnesses and to create evidence that would convict the driver White and his passenger, Hammitte, of misconduct. They say here:

"The jury could well have believed, therefore, that the Hammitte witnesses had put together an unbelievable story and the jury may then have chosen, correctly we think, not to believe it.

"Certainly the jury must have wondered at the unexplained silence of Arlie Hammitte as his car drove up the highway that day and he gave not a word of warning to his own driver about the mine road which was ahead of them, and the possibility that the trucks which had stopped off the left side of the highway might just intend to turn into that mine road."

The jury could, of course, disbelieve parts of the testimony of plaintiff's witnesses if such testimony was opposed by contrary testimonial or physical evidence or was inherently incredible. Such, however, was not the case. The burden of proving contributory negligence of White or Hammitte was on the defendant. Mitchell v. United States, 396 F.2d 650, 651 (6th Cir. 1968); Rules 8.03 and 43.01, Ky.R.Civ. P. We are aware that in testing whether a verdict should be directed against a party carrying the burden of proof, the relevant evidence must be considered in the light most favorable to the party carrying such burden. Metcalfe v. Hopper, 400 S.W.2d 531, 534 (Ky.1966). Obeying such rule, we nevertheless consider that the issue of Earl White's contributory negligence should not have been submitted. Notwithstanding his expressed doubts, the District Judge was persuaded, apparently as a compromise, to give the instruction above set out using the last clear chance rule with what was likely a correct statement of the rule applicable to the duty...