HW Bass Drilling Co. v. Ray

• Decision Date: 27 January 1939
• Docket Number: No. 1724.,1724.
• Citation: 101 F.2d 316
• Parties: H. W. BASS DRILLING CO. v. RAY.
• Court: U.S. Court of Appeals — Tenth Circuit

101 F.2d 316 (1939)

H. W. BASS DRILLING CO. v. RAY.

No. 1724.

Circuit Court of Appeals, Tenth Circuit.

January 27, 1939.

L. O. Fullen, of Roswell, N. M., for appellant.

Caswell S. Neal, of Carlsbad, N. M. (C. M. Neal, of Hobbs, N. M., on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This action was instituted by Mrs. Debs Ray, administratrix of the estate of Vernon Debs Ray, her husband, who died intestate, as plaintiff, to recover damages for his death against H. W. Bass Drilling Company, as defendants, on account of injuries occurring on October 31, 1936, in an automobile accident occasioned by its negligence. Judgment was rendered on verdict in favor of plaintiff, from which an appeal was duly prosecuted.

The parties will be referred to in the order in which they appeared in the trial court, the appellant as "defendant," and the appellee as "plaintiff."

Defendant, in its answer, among other things pleaded contributory negligence on part of plaintiff's intestate.

Plaintiff's intestate was employed by Younger Brothers, teaming and trucking contractors. He had been a truck driver. At the time of his death he was engaged in digging a slush pit near Oil Center, New Mexico. In performing his duties he drove a Ford pickup truck. On the evening of October 31, 1936, he left the camp where he lived in the pickup with the lights on to get some men who were working at the slush pit. He was traveling in a westerly direction on the road between Eunice and Monument. Defendant's truck in charge of Westmoreland, as driver, was stopped across and in the road on which plaintiff's intestate was traveling. The truck extended 38 feet from the north line of the road, leaving a clearance of 28 feet of roadway. The truck was loaded with oil well pipe which rested on the trailer attached thereto and which extended 30 feet from the rear of the truck. The headlights of the truck were burning and threw a light to the south across the intervening 28 feet of roadway. The driver had stopped the truck to load a kelly which is a square joint of pipe used in drilling oil wells, and to reboom the load. The pickup being driven by plaintiff's intestate collided with the truck, and plaintiff's intestate suffered injuries as a result of the collision, from which he died. The truck had been stopped in the road at least one and one-half minutes before the collision occurred.

Wooten was employed by the defendant as a watchman at a drilling rig on a lease near the point where the accident occurred. Prior to and at the time of the accident he was seated in an automobile about 40 to 50 feet from the point where the collision occurred. He first observed plaintiff's intestate approaching in the pickup about a quarter of a mile away and observed him until the collision occurred. He testified that he had driven automobiles since 1916; that in his opinion plaintiff's intestate was traveling at a speed of 60 miles an hour until he reached a point about 57 yards from the truck, when he applied his brakes to the pickup; that he drove straight into the truck after applying the brakes; that at the time of the collision in his opinion the pickup was traveling at a speed of 40 miles an hour. He admitted that he did not hear the noise of the pickup motor.

John Dyson lived at Monument. On the night of the accident he and his wife were traveling westerly on the road in an automobile at a speed of from 20 to 25 miles an hour. At a distance of 30 or 40 yards from the truck, Mrs. Dyson called her husband's attention to the lights of the truck. He slowed down and stopped toward the rear of the truck on the right side of the road. They observed a man on top of the truck booming the load. They saw no lights on the truck except the headlight and no flares in the road. It was about six-thirty when they reached the truck and fully dark. They turned out and passed the truck on the left side of the road. This was all prior to the accident. Dyson testified respecting the condition of the road and that he did not think it possible for one to travel thereon at a very high rate of speed.

On the night of the accident, Sam Weaver, who lived at Monument and worked at Eunice, was traveling westerly on the highway. He saw the Dysons about a mile west of Eunice and stopped and talked to them. The Dysons left about three to five minutes ahead of him. He did not pass them on the road. As he approached the defendant's truck he saw the headlights across the road and observed the pickup which had run under the pipe. He was traveling from 10 to 25 miles per hour. He saw no one at the point of the accident. It was fully dark. The color of the highway at the point of the collision was reddish or rusty, and similar to the color of the pipe.

Westmoreland, defendant's truck driver, testified that he and Williams, his helper, on the night of the accident went to the rig location about 75 feet north of the highway and put a load of pipe on the truck; that they then pulled out into the road and stopped; that Williams called him to bring the boomer; that he got out of the truck, secured the boomer, and took it back to Williams; that after he handed the boomer to Williams the latter told him he had better put out the flares, as it might take longer to boom the load than he expected; that just as he turned around to get the flares, the pickup hit defendant's truck; that the flares were on the side of the truck where the collision occurred; that Williams was at the back end of defendant's truck when he handed him the boomer, and he returned to get the flares; that a boomer is about two feet long, weighs about five pounds, and is used to tie down the load with chains; that he had boomed down the load before they left the location; that the headlights, clearance lights, cab lights, and taillights were burning at the time of the collision; that he did not observe the pickup approaching; that Wooten, the watchman, assisted him and Williams in pulling the pickup from under the load; that they took plaintiff's intestate to the hospital at Hobbs, and later returned to the scene of the accident; that neither he nor Williams had gotten on top of the load immediately prior to the accident; that the first booming is not sufficient; that it is necessary to retighten the chains; that he stopped on the highway to reboom the load and to load the kelly on the trailer; that the clearance lights could be seen clearly at a distance of 500 feet; that he did not observe the Dysons pass defendant's truck; that he put out the flares after the accident.

Williams, the helper, testified to substantially the same facts as Westmoreland.

Kerley, sheriff of Lea County, testified that he was familiar with the place where the collision occurred; that there was no reason why the load could not have been boomed at the original point of loading, and that it was not necessary to boom the load while the truck was standing on the highway.

Jack Edwards, a witness for the defendant, testified that he had been connected with the traffic department of the city of Roswell for a period of 15 years, and had had occasion to check on the speed of automobiles, and to judge the distance within which an automobile could be stopped at given speeds by application of the brakes. He testified that the danger zone of an automobile traveling 30 miles an hour is 82 feet, 40 miles an hour 132 feet, 50 miles an hour 192 feet, and 60 miles an hour 264 feet; that with an allowance of half a second for reaction, an automobile traveling 40 miles an hour can be stopped within 117 feet, 50 miles an hour 174 feet, and 60 miles an hour 242 feet; that in his opinion, based on the testimony of the witnesses, the road on which plaintiff's intestate was traveling was not a good braking road, and that it would require longer to stop an automobile on that road.

A witness for the plaintiff testified that the pickup was a Ford truck and was being used for trucking purposes in the oil fields — for hauling oil and oil field tools.

The jury returned a verdict in plaintiff's favor, and answered "No" to the special interrogatory submitted by the court in connection with the instructions to the jury.

The court gave instruction No. 8 and refused to give No. 11, the defendant saving an exception as to each, the latter, requested by defendant, being as follows:

"You are instructed that at the time of the collision and accident complained of, to-wit: October 31, 1936, there was in full force and effect in the State of New Mexico a safety statute, Chapter 118 of the Laws of 1933 (section 1, sub-section b), which provided as follows:

"`Maximum Speed. No bus or truck shall be operated at a speed greater than forty-five miles per hour. Passenger automobiles may be operated at such speed as shall be consistent at all times with safety and the proper use of the roads'."

"And in connection with this statute I charge you that if you find from a preponderance of the evidence that the deceased, Vernon Debs Ray, at the time of the accident, was operating his truck in excess of forty-five miles per hour, this fact, if it was a fact, is negligence per se, that is, negligence of itself; and you are instructed that if you further find that such negligence, if any, contributed to and was a proximate cause or one of the proximate causes of the death of the deceased, then the plaintiff cannot recover and your verdict will be for the defendant."

Said instruction No. 8, given (not requested by defendant, and to the giving of same defendant saved an exception), is as follows:

"You are instructed that there is some testimony in this case that just prior to, and at the time of the accident, the deceased was driving the car in which he was riding at an excessive rate of speed.

"There is no law in the statute books of this state prescribing the speed at which a pickup¹ truck shall run on the roads of the State, or on the...