Harshberger v. Associated Transport, Inc.
| Decision Date | 29 August 1960 |
| Docket Number | 264,Dockets 25936,25937.,No. 263,263 |
| Citation | 282 F.2d 179 |
| Parties | Dorothy M. HARSHBERGER, as Administratrix of the Estate of Harry Nelson Harshberger, Deceased, Plaintiff-Appellee, v. ASSOCIATED TRANSPORT, INC., and Floyd Kenneth Spenton, Defendants-Appellants. ASSOCIATED TRANSPORT, INC., Plaintiff-Appellant, v. Dorothy M. HARSHBERGER, as Administratrix of the Estate of Harry Nelson Harshberger, Deceased, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Bartle Gorman, Utica, N. Y., for plaintiff and defendant-appellee, J. Walter Augar, Utica, N. Y., on the brief.
Copal Mintz, New York City, for defendants and plaintiff-appellant (Harold Davis, New York City, of counsel).
Before WATERMAN and BARNES,* Circuit Judges, and SMITH, District Judge.
Two appeals are here presented from judgments rendered in the United States District Court for the Northern District of New York. The first is by defendants below from a judgment in favor of plaintiff-appellee in the sum of $59,312.50, plus costs, for the alleged wrongful death of appellee's husband, and the second by defendant Associated Transport, Inc., from a judgment against it on its claim for property damage.
This action was brought (according to the judgment, though not so stated in the complaint) under Sections 130 to 134 of the Decedent Estate Law of the State of New York. It is a diversity case. 28 U.S.C. § 1332. This Court has jurisdiction of the appeals. 28 U.S.C. § 1291.
Because the principal appeal is based upon the alleged insufficiency of the evidence to support the verdict, we must consider the facts. Many are undisputed.
On April 7, 1956, at about 4:20 A.M., two vehicles approached each other from opposite directions on New York State Highway 17, about fourteen miles east of Farley and two miles west of Owego in New York State. Plaintiff's intestate was the owner and operator of a 1950 Chevrolet sedan automobile traveling in a generally easterly direction; the defendants were the owner and operator, respectively, of an "International 200" tractor and trailer being driven in a general westerly direction. This latter piece of equipment was forty-two feet long, eight feet wide, and carried a load of 19,000 or 20,000 pounds. New York State Highway 17 at the point of the accident is twenty to twenty-one feet wide and paved. On each side is a four to five foot shoulder. Weather conditions were not good. It had been and was raining steadily that night, and it was dark.
The precise point of impact is in dispute, but it was on the westerly end of a "six degree curve" in Highway 17. To the Chevrolet driver, the curve he was approaching curved to the right, and a macadamized "old" country road, sixteen or seventeen feet in width, continued straight ahead. The tractor-trailer had just rounded the curve to the left when it came to rest after the impact.
The general position of the two vehicles after the accident is not in dispute, although their precise positions are. They were roughly due north of a telephone pole marked (and referred to by witnesses) as "N. Y. S. Eng. 515." This pole was located ten feet south of Highway 17 pavement and within a few feet of the start of the curve to the south. After the accident, the Chevrolet was facing west (in the opposite direction to that in which it had been going), partly on the pavement and partly on the south shoulder, and a foot or two north of the pole. The center of the trailer was almost directly opposite the same pole, on the north side of the highway and the north shoulder. The tractor and trailer were jackknifed, so that the trailer headed west and the tractor angled southeast. The right wheels of the trailer were on the northerly shoulder. Both rear wheels of the tractor were at or near the north shoulder or north edge of the pavement.
The decedent, Harry Harshberger, and his brother, Edwin, had left Johnston, Pennsylvania, bound for North Adams, Massachusetts, at about 8:00 P.M., Friday night, April 6, 1956. The place of the accident was between two hundred and thirty-six and two hundred and forty-two miles east of the point of departure. Edwin, driving a truck (and familiar with the highway, having traveled it before) was traveling in the lead, and decedent (unfamiliar with the highway) was following behind, generally, four or five car lengths and at times at a greater distance. Decedent had put in a full day's work at his regular occupation as a maintenance man, from 8:00 A.M. to 5:30 P.M., before starting the trip with his brother. Four stops had been made for coffee, food or gasoline.
At the site of the accident, the speed limit was fifty miles per hour. There was no testimony that either vehicle at any time had exceeded this speed. But two witnesses testified as to the vehicles' respective speeds. Edwin Harshberger testified the defendants' vehicle was traveling "fast"1 when he met it before the accident. He and his brother were traveling forty to fifty miles per hour, a speed which he considered "fast," considering the darkness and the weather. The defendant Spenton testified he was going forty miles per hour before the accident, when he first saw the decedent's vehicle on the wrong side of the highway, and that he thereafter slowed to thirty-five miles per hour before the impact.
Edwin, decedent's brother, was not an eyewitness to the impact, as he had successfully met and passed the tractor-trailer, as well as two trucks that were following the tractor-trailer some two hundred feet and more behind it. Edwin testified he was at the time of meeting the tractor-trailer some four to five hundred feet east of the start of the curve, at which time the decedent's Chevrolet was "four or five car lengths" (eighty to one hundred feet) behind Edwin's truck. As Edwin met and passed the tractor-trailer it had its running lights and headlights on, and it was completely on its own or north side of the highway. Edwin continued some distance south and east before stopping. Edwin Harshberger did not hear the crash of the impact.
When defendant Spenton first saw the decedent's Chevrolet partially on the wrong or north side of the highway, it was seventy-five to eighty feet ahead. Spenton further testified he did not know the exact point of the impact. He was hurled from his tractor onto the south side of the highway by the impact and rendered unconscious.
When Spenton saw the decedent's car continue to come toward him partially on the wrong side of the highway, he had snapped his headlight beam low and high several times; he pumped his brakes, and turned to the right. He had less than a second to act before the impact.
The physical damage to the Chevrolet was extensive. Its entire left side almost to the rear wheel, and its left front over to the right headlight, were severely crushed. The tractor's left front was badly damaged. Photographs of the damage to each vehicle were before the jury.
(1) There is a dispute as to the precise location of the tractor, and particularly the front wheels thereof, after the accident. There was evidence the wheels were completely north of the center line; and there is an inference (the tractor's rear wheels being close to the north edge of the twenty-one foot pavement, and the front bumper of the tractor being fourteen feet five and one-half inches ahead of the rear wheels) that they extended south of the center line. This inference depends upon the angle which the tractor took, facing southeast, after the impact. It is no proof as to the position of the vehicles at the time of impact.
(2) There is a dispute as to the distance the decedent's Chevrolet was behind his brother's truck just prior to the accident. Spenton testified the decedent's Chevrolet was two hundred and fifty to three hundred yards behind Edwin's truck, rather than the eighty to one hundred feet to which Edwin testified.
The physical location of the two vehicles, after the accident, opposite pole 515 lends support to the accuracy of Spenton's testimony as to the distance between the Harshberger brothers' truck and car, rather than to the accuracy of Edwin Harshberger's testimony. Had Edwin been four to five hundred feet east of the juncture of the "old" country road and Highway 17, and the decedent eighty to one hundred feet behind Edwin, the tractor and trailer then being thirty to forty feet further east, the impact would necessarily have taken place three hundred and fifty to four hundred and fifty feet east of the juncture and pole 515, rather than within approximately fifty feet of it.
But no matter if the trier of fact rejected defense testimony entirely and accepted plaintiff's version, no evidence of negligence was thereby proven upon which liability could rest.
(3) There was a dispute as to the existence or non-existence of scrape marks or gouges in the pavement. These were testified to by Officers Davis and Lockwood of the Tioga County Sheriffs Department. They testified they arrived at the scene of the accident at 4:23 A.M. and 4:40 A.M., respectively. They each testified there was a "fresh" scrape mark or gouge in the pavement from a point "approximately in the middle of the west bound lane" east of where the Chevrolet had come to rest, forming an arc to the middle of the Chevrolet forty-seven and one-half feet long at the arc's base. They paced this distance and measured it with a tape measure twice. In the immediate vicinity of that mark there was broken glass and debris on the pavement. There was no debris and no marks elsewhere, at least within the immediate vicinity of the position of the two vehicles at rest, and the scrape mark. Edwin Harshberger testified in rebuttal he had visited the scene of the accident...
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