Jackson v. Blue

• Decision Date: 05 November 1945
• Docket Number: No. 5403.,5403.
• Citation: 152 F.2d 67
• Parties: JACKSON et al. v. BLUE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

152 F.2d 67 (1945)

JACKSON et al. v. BLUE et al.

No. 5403.

Circuit Court of Appeals, Fourth Circuit.

November 5, 1945.

Aubrey R. Bowles, Jr., of Richmond, Va., and W. Moncure Gravatt, of Blackstone, Va. (Bowles, Anderson & Boyd, of Richmond, Va., on the brief), for appellants.

George E. Allen, of Richmond, Va., Robert Whitehead, of Lovingston, Va., and M. Wallace Moncure, Jr., of Richmond, Va., for appellees.

Before SOPER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.

SOPER, Circuit Judge.

This suit was brought in the District Court by Victor Blue, a citizen of Virginia, for injuries received on November 8, 1943 while driving a bus of the Atlantic Greyhound Corporation, which came into collision on a public highway of the State with the blade of a bulldozer that was being transported on a tractor-trailer truck. There were numerous defendants, all of whom were citizens of other States, but we are concerned on this appeal with only three defendants or groups of defendants against whom a verdict was rendered in the District Court. They are Robert Jackson, the driver of the tractor-trailer truck; Highway Equipment and Construction Company, the owner of the tractor-trailer and the bulldozer; and a partnership or joint venture which participated in the transportation of the tractor-trailer and bulldozer, known as Grannis, Higgins, Thompson & McDevitt Company, composed of certain individuals and a corporation, which have been called the "Pool" in this litigation.

The Collision

We consider first the questions of negligence and contributory negligence upon which the liability for the accident depends. These questions were raised below by motions for a directed verdict on behalf of the defendants based on the grounds, amongst others, that there was no evidence of primary negligence on the part of the defendants or any of them, and that in any event Blue, the driver of the bus, was guilty of contributory negligence. The evidence on the part of the plaintiff may be summarized as follows: The collision occurred on a dark, rainy evening between 6:30 and 6:45 P. M. on November 8, 1943 on Route 40 about six miles south of Blackstone, Virginia, in the vicinity of a small culvert. The Atlantic Greyhound bus was bound north and the tractor-trailer was bound south. The roadway was hard surfaced macadam varying from 18½ to 20 feet in width. The width between the head-walls of the culvert, which were 6 inches in height, was 22 feet. The bus was 33 feet long and 8 feet wide and weighed 9 tons. It contained fifteen passengers at the time in addition to the driver. The tractor-trailer combination was designed for the movement of heavy machinery. The tractor, 15 feet in length, and joined to the trailer 28¼ feet in length by a gooseneck, and the entire length of the articulated vehicle was 43½ feet. The bed of the trailer was 18 to 20 inches above the surface of the highway. The width of the trailer was 8 feet. The machine transported by the tractor-trailer consisted of a caterpillar tractor equipped with a bulldozer weighing 18½ tons, the entire vehicle, including the tractor-trailer and the bulldozer weighing 62,000 pounds or 31 tons. The blade of the bulldozer was 12 feet 3 inches wide and extended 25 inches over the left side of the trailer as it proceeded along the highway. The entire width of the tractor-trailer unit with the bulldozer superimposed was 147 inches.

Immediately before the accident the bus was proceeding northwardly at the rate of thirty miles per hour down a long grade which was straight for 1,000 feet but which ended at the culvert. North of the culvert the highway rose slightly for 300 feet. The center of the highway was marked with an intermittent white line which was clearly marked and continuous so as to show the center of the roadway south of and inside the culvert. The tractor-trailer had been traveling, according to the testimony of its driver, at the rate of fifteen miles per hour but came to a standstill shortly after the collision.

It will be observed that the width of the defendants' vehicle plus the extension of the bulldozer on each side amounted to 12¼ feet, so that if the wheels of the vehicle remained on the paved roadway, the edge of the bulldozer, centered on the trailer, reached to or across the center of the roadway 18½ to 20 feet wide. The evidence indicates that this extension of the bulldozer on the left produced the catastrophe, for the plaintiff, the driver of the bus, testified that the bus was proceeding at the rate of thirty miles an hour on its right hand side of the road when the accident occurred. The bus passed the tractor successfully and without contact with the tractor, but the front part of the bus on its left side came in contact with the protruding end of the bulldozer. It is conceded that the first injury to the bus occurred when the front part of it struck the blade of the bulldozer. After the accident marks were found on the left side of the trailer, indicating that after the blade of the bulldozer penetrated the bus, the bus scraped along the left side of the trailer.

The blade of the bulldozer cut a gash in the left side of the bus 21 inches in depth, 5 feet 4 inches above the ground, throughout the length of the bus, injuring the plaintiff and also killing or injuring a number of persons riding on that side of the vehicle. The driver of the bus lost control of the vehicle and it finally stopped 150 feet north of the culvert at an angle on the west side of the road entirely off the pavement. The tractor-trailer stopped about 40 feet south of the culvert on the west side of the road with its left side wheels partly over the center of the road. It was seen in this position by the driver of the second section of the Greyhound bus which arrived at the scene a few minutes after the collision. He drove off the east side of the road and stopped south of the culvert along side of the tractor-trailer in order to avoid the bulldozer, which had been displaced by the blow and extended over the center of the highway.

The Defendants' Negligence

The charge of negligence in the operation of the tractor-trailer is based upon its movement along the highway burdened by a machine of greater width than one-half the surface of the road which the combination was privileged to occupy. The paved surface in the vicinity of the culvert was widest within the walls of that structure, that is to say, 22 feet in width, while the bulldozer was 12 feet 3 inches wide and protruded 25 inches beyond the 8 foot trailer on the side next to the opposing traffic. When it is borne in mind that the journey was continued after dark, the danger to passing vehicles is obvious. Moreover, the arrangement of the defendants' combination was contrary to the law of Virginia. It is provided by § 2154 (158) of Michie's Code of Virginia that no vehicle shall carry any load extending beyond the line of the fender or body on the left side of the vehicle, nor more than 6 inches beyond the line of the fender or body on the right side thereof. The width of the integrated vehicle and load exceeded that permitted by State statute, Michie's Code, § 2154 (160), which provides that the gross weight of any sixwheel vehicle or any combination of vehicles and load shall not exceed 35,000 pounds. Moreover, the total outside width of the defendants' unit, including the load, was 147 inches, whereas the Virginia statute, Michie's Code, § 2154 (158), provides that no vehicle shall exceed a total outside width, including the load thereon, of 96 inches.

The State laws do not overlook the need to provide for unusual situations since it is provided in Michie's Code, § 2154 (161) that the State Highway Commission and local authorities of cities and towns may, in their discretion, issue a special permit in writing authorizing the applicant to operate or move a vehicle upon the highways of a size or weight exceeding the maximum specified in the Virginia statutes above mentioned. The defendants made no application for and received no such permit.

It is generally considered that a prima facie case of negligence is made out where a statute prescribing a duty for the protection of persons or property is violated; and in this case it is conceded that the defendants' violations of the Virginia statutes constituted technical negligence. But it is urged that such a showing is insufficient unless it appears that the negligence was the proximate cause of the injury claimed. It is obvious in the pending case that such a showing was abundantly established. The conduct of the defendants exhibited a lack of care in an extraordinary degree, irrespective of the statutory prohibitions, and the violations of the law in addition gave point and support to the charge of negligence and the causal connection between it and the plaintiff's injury. See Etheridge v. Norfolk Southern R. Co., 143 Va. 789, 129 S.E. 680; Kinsey v. Brugh, 157 Va. 407, 411, 161 S.E. 41; Wyatt v. Chesapeake & Potomac Telephone Co., 158 Va. 470, 480, 481, 163 S.E. 370, 82 A.L.R. 386.

Contributory Negligence

Notwithstanding these conclusions, we are asked to rule as a matter of law that the plaintiff is barred from recovery by contributory negligence on his part. It is said that he was driving negligently on a wet, slippery surface after dark in excess of the lawful speed of 35 miles per hour on the wrong side of the road without keeping a proper lookout for passing vehicles; and it is suggested that if he had been driving carefully, he could have avoided the tractor-trailer by driving off the road before reaching the culvert as did the driver of the second section of the Greyhound line on the night of the accident.

If these allegations were proved beyond question, the defense would be made out; but they represent in large part the conclusions of the defendants on disputed questions of fact. The charge of excessive speed is based upon the fact that the heavy...