Hinton v. Dixie Ohio Exp. Co., 11228.

• Decision Date: 11 April 1951
• Docket Number: No. 11228.,11228.
• Parties: HINTON v. DIXIE OHIO EXP. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

188 F.2d 121 (1951)

HINTON v. DIXIE OHIO EXP. CO.

No. 11228.

United States Court of Appeals, Sixth Circuit.

April 11, 1951.

Arthur Grafton, Louisville, Ky. (Arthur W. Grafton, Ed. P. Jackson, Jr. and Wyatt, Grafton & Grafton, all of Louisville, Ky., on the brief), for appellant.

John L. Davis, Lexington, Ky. (R. W. Keenon, John L. Davis and Stoll, Keenon & Park, all of Lexington, Ky., on the brief), for appellee.

Before SIMONS, MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

The district court directed a verdict against appellant, Hinton, in an action for damages for personal injuries brought by him against Dixie Ohio Express Company.

When injured, Hinton was driving a large truck with a smaller one mounted on it and a third truck attached by a tow bar and timbers. The vehicle of appellee with which he came into collision on a highway near Nicholasville, Kentucky, was a standard size tractor-trailor unit. Appellant was an experienced truck driver, having been occupied for several years as a delivery driver of automobiles from factory to dealer. His total mileage was over 1,250,000, about half of which consisted in truck driving.

According to his testimony, he was familiar with road customs of truck drivers generally and in Kentucky. He said that the customary signal when one truck driver in Kentucky desires to pass another was either to turn headlights full on, or to blink them constantly to obtain the attention of the front driver, who would give a clearance signal by two blinks of his clearance lights or show a red light from the rear of his truck.

The collision occurred at 10:30 o'clock in the morning of a clear day on a dry highway. According to Hinton, he had been traveling for sometime behind the Dixie company truck and, wishing to pass, had been checking the road. Eventually, when some two hundred to three hundred yards from the point of collision where he could see approximately a half mile of the road ahead with no traffic approaching, he used his headlights as a passing signal and received from the Dixie truck ahead an answering signal by two light flashes from the rear of the trailer. On cross-examination, appellant admitted that he did not believe he sounded his horn before he started to pass the Dixie truck, which at the time was moving at a speed of about twenty-five miles per hour.

He testified that as he went past appellee's truck, its "speed increased rapidly", at which time the front end of his truck had reached a position almost even with the rear of the cab of the Dixie truck. There were guard rails on each side of the road at the point of collision. Appellant stated that when he was apparently half way or nearly through the portion of the road protected by these guard rails, the truck in front of him swerved slightly to the right "and then came back sharply" to the left across the center line and crowded him completely off the highway, to such extent that his vehicle went through the guard rails into a field four or five feet below the road level. He stated that his vehicle first hit a telephone post, and then a log lying cross-ways in the field which "threw the outfit into the air". Appellant hit the ground and, soon afterward, the driver of the Dixie truck came over to where he was lying.

An eye witness, Reynolds, engaged in running a riding school on a neighboring farm, was put on the stand by appellant. He testified that the portion of the road between the guard rails is considerably narrower than the road at the top of the hill; that people who live in the vicinity watch vehicles passing simultaneously through the guard rails and "make mental bets with ourselves as to whether they will get there or not." So, from a distance of some 125 yards he watched the occurence in controversy.

When both trucks were in between the guard rails, Reynolds saw the Dixie truck swerve toward the center of the road and, though he did not state unequivocally that it actually did cross the center line of the highway, he said "it looked very much like a part of the rig might have been across the center line." He testified further that there was a hump in the road at the approximate point where he saw the Dixie truck swerve. He said that the Dixie driver stopped his rig almost immediately, came over the fence and assisted him in helping the injured man, who was conscious; and that the latter and the Dixie driver talked about the accident. The witness could not recall the conversation, however, and would not attempt to quote it.

Before appellant had closed his proof, his attorney agreed as a matter of accommodation that Schooler, a trooper with the Kentucky State Police and a witness in behalf of appellee, might testify out of turn. The officer swore that upon notification he went to the scene of the accident, arriving there at approximately eleven o'clock A. M. He found appellant's rig over in a field some fifty or sixty feet off the highway and the Dixie truck up the road perhaps two hundred yards "pulled off in a wide spot so that the road could be cleared." He measured the width of the highway. At the top of the hill from which appellant had approached the portion of the road enclosed by guard rails the width was found to be 19 feet, 5 inches, with three-foot shoulders, and at the point of impact between the guard rails the width was 16 feet, 10 inches, with two-foot shoulders. The officer stated that appellee's rig was approximately eight feet wide and appellant's approximately seven feet, or a little over. He testified further that the asphalt road surface of the highway was slick, and sufficiently bumpy to cause a vehicle to swerve "in passing over those bumps". Asked whether there was room on the road for the two vehicles to pass, he responded affirmatively, but said "it was close."

Appellant contends that in presenting, by agreement of counsel, the testimony of Officer Schooler before the plaintiff had rested his case, the defendant (now appellee) waived its right to move for a directed verdict at the close of plaintiff's proof. In view of our conclusions about to be stated, we regard it as unnecessary and immaterial to pass upon the point.

(1) The district judge committed reversible error in denying appellant the right to testify as to a statement made to him by appellee's truck driver. Appellant swore that, a few minutes after the accident, while he was lying on the ground, the driver came over to him. The witness was asked: "Did he say anything to you about the accident?" Appellee's attorney objected to the question. Appellant's advocate stated that the conversation was certainly part of the res gestae. The court interposed: "I don't know whether it is or not. I don't know how much time had elapsed." The witness was then asked how long was it after he hit the ground before the truck driver came over to him. "It seemed like just a matter of a few minutes", he responded. "It could not have been very long."

"Well, he had gotten out of his truck and walked across the road, is that right?" the judge asked.

"I believe that is right", the witness replied.

The judge questioned: "How far distant?"

"I don't really know how far I was off the road", the witness answered.

Whereupon, the judge, without further comment, said: "I sustain the objection."

The attorney for appellant requested and received permission to make an avowal. He stated that appellant, if permitted, would have testified that the driver of appellee's truck came over to where he lay on the ground and said to him that the Dixie truck "got out of control" when it "hit the bump, which caused him to swerve to the left."

The error of the trial judge in excluding the proffered res gestae statement seems to stem from misconception of the essential element in the rule of admissibility — the spontaneity of the statement. He rested his ruling upon the mere lapse of time measured in minutes between the accident and the alleged statement. The res gestae rule and the reasons underlying it are clearly stated by the Court of Appeals of Kentucky in Consolidated Coach Corporation v. Earls' Adm'r, 263 Ky. 814, 818, 820, 94 S.W.2d 6, 8: "As a part of the res gestae, declarations or statements made or acts done following the happening of the principal act or event are admissible when so intimately connected and interwoven with the principal fact by surrounding circumstances as to raise a reasonable presumption that the statements were made or the act done under the immediate influence of the principal transaction and as a spontaneous expression of thought created by or springing out of the transaction itself, and so near in point of time as to exclude the presumption that it was the result of premeditation or design." This quotation was approved in Castle v. Allen, 274 Ky. 658, 662, 120 S.W.2d 219.

The opinion in the Consolidated Coach Corporation case, supra, cites numerous Kentucky authorities, in which statements measured in varying numbers of minutes after an accident were held admissible under the res gestae rule. The Kentucky court emphasized its earlier opinion in National Life and Accident Insurance Co. v. Hedges, 233 Ky. 840, 847, 27 S.W.2d 422, 425, wherein it had declared: "Spontaneity, as distinguished from a mere matter of time, has come to be considered the determining factor." In that case, the statement held to have been properly received in evidence under the res gestae rule was made between ten and fifteen minutes after the occurrence concerning which it was made. There was obviously no longer time lapse in the instant case.

In Kentucky, statements concerning a collision with an automobile made by a truck driver as a part of the res gestae have been declared admissible against his employer, a truck line company. J. N. Youngblood Truck Lines v. Hatfield, 304 Ky. 600, 608, 201 S.W.2d 567.

This court has stated that the res gestae rule permits introduction in evidence of statements substantially...