Haworth v. Mosher, 9760.

• Decision Date: 22 May 1968
• Docket Number: No. 9760.,9760.
• Citation: 395 F.2d 566
• Parties: Harry HAWORTH, Appellant, v. Christopher F. MOSHER, Charles H. Grigsby, Russell Taylor, George Taylor, Marion Mark Masters, driver of the truck owned by George Boekhoff, Jerry E. Crown, Wayne T. Abbey, Elisa Newton Crabtree, and George Boekhoff, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

395 F.2d 566 (1968)

Harry HAWORTH, Appellant, v. Christopher F. MOSHER, Charles H. Grigsby, Russell Taylor, George Taylor, Marion Mark Masters, driver of the truck owned by George Boekhoff, Jerry E. Crown, Wayne T. Abbey, Elisa Newton Crabtree, and George Boekhoff, Appellees.

No. 9760.

United States Court of Appeals Tenth Circuit.

May 22, 1968.

James M. Little, Oklahoma City, Okl. (Leslie L. Conner and Leslie L. Conner, Jr., of Conner, Little & Conner, and O. A. Cargill, Jr., Oklahoma City, Okl., on the brief), for appellant.

Mart Brown, Kenneth N. McKinney and William G. Smith, Oklahoma City, Okl. (H. A. Bud Carter, Duvall, Head, McKinney & Travis, Pierce, Duncan, Couch & Hendrickson, Rinehart, Morrison & Cooper, Fenton, Fenton, Smith, Reneau & Moon, Cheek, Cheek & Cheek, and Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, Okl., on the brief), for appellees.

Before LEWIS, SETH and HICKEY, Circuit Judges.

DAVID T. LEWIS, Circuit Judge.

This appeal is brought to us under Rule 54(b), Fed.R.Civ.P., from a summary judgment entered by the District Court for the Western District of Oklahoma. The judgment, adverse to the appellant-plaintiff, was premised on the pleadings and depositions and affidavits filed in support of appellees-defendants' motions lodged under Rule 56. Appellant submitted no counter-filings.

Appellant seeks recovery of damages for personal injuries suffered in an automobile accident occurring during a dust storm. The evidentiary facts are not in dispute and appellant's present contention is limited to the claim that the ultimate facts of negligence and proximate cause remain in dispute and thus render summary judgment inappropriate The substance of the trial court's judgment is bottomed upon the conclusion that the original acts of the appellees, regardless of negligence, were not the proximate cause of the injuries claimed by appellant.

The record shows and the trial court found the following evidentiary facts to be without material dispute:

"1. On April 12, 1964, at a point about seven and one-half miles southwest of Guymon, Oklahoma, on U. S. Highway 54, the parties to this action, and others, travelling in a northeasterly direction, were involved in a series of separate accidents involving automobiles, trucks, and tractor-trailers, which the parties hereto either owned, operated or were riding in as passengers. The plaintiff received serious personal injuries for which he seeks damages in one of the series of accidents which occurred.

2. On April 12, 1964, the plaintiff and one J. C. Cox were employed by Denver-Chicago Trucking Company as drivers of a 1964 Kenworth tractor and trailer, the two alternating in resting and driving. The vehicle in which the plaintiff was riding was proceeded sic by a 1963 Kenworth tractor and trailer driven by one Charles W. Wyatt who was also employed by Denver-Chicago Trucking Company. Plaintiff was asleep or resting at the time of the accident involving the tractor and trailer in which he was riding.

3. The accident for which the plaintiff seeks damages, was one of a series which occurred in the following sequence.

(a) Defendant Christopher F. Mosher, driving a 1960 Lincoln automobile, entered the dust storm and being unable to see brought his car to a stop on the paving.

(b) Defendant Charles H. Grigsby driving a 1964 International tractor-trailer, owned by him, on approaching the Mosher vehicle, slowed his truck to a near stop to avoid striking the Mosher vehicle.

(c) Defendant George Taylor driving a Chevrolet pickup owned by the defendant Russell Taylor struck the right rear of the Grigsby tractor-trailer.

(d) Defendant Mark Masters, driving a 1961 White tractor and trailer owned by defendant George Boekhoff struck the left rear of the Grigsby tractor-trailer.

(e) This latter impact knocked the Grigsby tractor-trailer into the rear of the Mosher car, the force of these impacts causing the Mosher car to go off the paving into the ditch and the Grigsby truck to go off the roadway onto the south shoulder. The Taylor pickup truck was disabled on the shoulder and Masters tractor-trailer remained on the roadway, disabled by the accident.

(f) Shortly after the collisions set forth in a, b, c, d and e above, a 1964 Chrysler driven by defendant Jerry E. Crown either stopped behind or struck the disabled truck of Masters and was stopped or disabled on the highway.

(g) A 1963 Chevrolet Corvair driven by the defendant Wayne T. Abbey then struck the rear of the Crown vehicle and was stopped or disabled on the roadway.

(h) Shortly thereafter a Chevrolet station wagon driven by defendant Elisa Newton Crabtree then struck the rear of the Crown vehicle.

(i) After the collisions set forth in f, g and h above, the Masters, Crown, Abbey and Crabtree vehicles were disabled on the highway paving, and the drivers left their vehicles.

(j) Shortly thereafter, after all of the vehicles referred to above had come to a complete rest, one Charles W. Wyatt, driver of a Denver-Chicago Truck, not named as a party defendant herein, observed the disabled vehicles on the highway and brought his tractor and trailer to a stop on the paving a

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