Jaggers v. Southeastern Greyhound Lines, 8827.

• Decision Date: 12 March 1942
• Docket Number: No. 8827.,8827.
• Parties: JAGGERS v. SOUTHEASTERN GREYHOUND LINES, Inc.
• Court: U.S. Court of Appeals — Sixth Circuit

126 F.2d 762 (1942)

JAGGERS v. SOUTHEASTERN GREYHOUND LINES, Inc.

No. 8827.

Circuit Court of Appeals, Sixth Circuit.

March 12, 1942.

Cecil Sims, of Nashville, Tenn. (Pride Tomlinson and Hugh T. Shelton, both of Columbia, Tenn., and W. W. Berry and Cecil Sims, both of Nashville, Tenn., on the brief), for appellant.

W. M. Fuqua, of Nashville, Tenn. (W. M. Fuqua, Lindsey M. Davis, and J. Ross Cheshire, Jr., all of Nashville, Tenn., on the brief), for appellee.

Before HICKS, MARTIN, and McALLISTER, Circuit Judges.

HICKS, Circuit Judge.

Suit by appellant against appellee for damages for personal injuries sustained in a collision between an automobile driven by Sam Leftwich in which she was a passenger, and a bus operated by appellee. The declaration contained three counts.

The first charged a violation of Sec. 2690 (a) of the Code of Tennessee 1934,¹ in that appellee left its bus standing upon the paved and main traveled portion of the highway outside of a business or residence district, when it was practicable to park it off the paved or main traveled portion of the highway.

The second charged a violation of the same statute in that appellee failed, in parking its bus, to leave a clear, unobstructed width of 15 feet upon the main traveled portion of the highway for passage of other vehicles.

The third charged appellee with negligence at common law.

Appellee pleaded the general issue.

At the close of the evidence the court, upon motion, directed a verdict for appellee upon the first count, on the ground that it was not practicable for the bus to have been drawn farther off the road; but submitted the case to the jury upon the second and third counts. A verdict was returned in favor of appellant upon which she had judgment, and thereupon appellee moved the court to set aside both the verdict and judgment and to enter a judgment in its favor, in accordance with its former motion for a directed verdict; or, in the alternative, to grant it a new trial.

The court sustained the motion for a directed verdict, set aside the verdict and judgment and dismissed the case upon the ground that Leftwich's negligence was the sole, proximate cause of the collision. D.C., 34 F.Supp. 667. Appellant complains, — (1) of the directed verdict upon the first count; and (2) of the order setting aside the verdict and judgment upon the second and third counts and dismissing the action.

The accident occurred on Sunday night July 25-26, 1937, between 11:45 P. M. and 12:30 A. M., on the Nashville-Columbia Highway at a point about a quarter of a mile north of Franklin, Tenn. Appellee's bus left Nashville at 11:40 P. M. on its run to Birmingham and was due in Franklin at 12:05 A. M. It was running about ten minutes late. As it neared Franklin it drew toward the side of the highway and stopped in front of a dwelling to discharge two passengers, a woman and a small child. The woman had some difficulty in alighting with the child and the bus had been motionless for about a minute before it was struck at the left rear corner by the automobile driven by Leftwich.

It was stipulated that the bus was 8 feet wide and 9½ feet high and at the time of the accident was standing partially on and partially off the pavement, with its left side extending on to the paved portion of the highway about 5¾ feet. The highway was of asphalt, 20 feet wide and straight for a long distance in either direction, although there was a hill whose crest appeared from photographs to be 100 to 200 feet north and to the rear of where the bus was standing. It was further stipulated that there were gravel shoulders 9 feet, 2 inches wide on either side and level or flush with the main part of the highway and in good condition; that on the west side of the road, the bus' right-hand side, and immediately adjacent to the edge of the shoulder, there was a ditch 3 feet wide, which "had a depth of nine inches in two and one-half feet."

It was stipulated that at the time of the accident the lights on the inside of the bus were burning and that on the rear end there were burning: 5 red electric lights, 7¾ feet above the ground; 2 amber colored lights, 5¼ feet above the ground; 1 red taillight on the right rear side 3¼ feet above the ground; and 2 red taillights on the left rear side, 2¾ feet above the ground. It was also stipulated that there were 2 red reflector lights on the rear of the bus 3 feet from the ground. John Rush, a passenger on the bus and a witness for appellee, testified that he walked 400 feet to the rear of the bus just after the accident, and turning around, facing it, observed that all rear lights were burning. A photograph, taken some time later in daylight, but under conditions otherwise simulating those obtaining on the night of the accident, revealed that the entire rear of the body of the bus could be seen at a distance of 400 feet from an elevation approximating that of the eyes of the driver in an automobile.

There were four occupants in the Leftwich car; appellant, who lived in Hampshire, a town about 15 miles west of Columbia; her fiance, Bill McEwen, who lived in Columbia, which was some 25 miles south of Franklin; and Leftwich and his wife, who were residents of Hampshire. The four had been out since about 7:30 P. M. on a social evening together. They had visited one or two night spots and had drunk lightly of a mixture of gin and Seven-Up, and, although appellee introduced evidence of finding two partially filled gin bottles in or near the Leftwich automobile after it was wrecked, and of the strong smell of liquor around it, there was no evidence that any of the four had been affected in the slightest by their drinks.

Their longest stop had been at the Rendezvous, a night club 5 or 6 miles north of Franklin. They had left there about midnight and after stopping for a moment at a rest room, were driving south toward Franklin in the same direction as the bus, which had preceded it, at about 50 or 55 miles an hour, which was a customary speed along that highway. Just before the accident, appellant and McEwen were discussing whether he should stop at Columbia as they went through or drive on to Hampshire with them and return with a friend. Mrs. Leftwich was participating in this discussion and Leftwich was listening but was taking no active part in it and was keeping a lookout ahead.

Leftwich's testimony was, that as he reached the top of the hill north of Franklin and as his lights leveled out down the hill, he observed a number of lights about 200 feet away which appeared to be on a bus or truck, but which, "* * * gave the appearance of moving along the road. It was a second or two before I realized the lights were standing still. I thought it was moving along about the same speed I was." He testified further, that, "* * * the lights were very deceptive"; that he realized they were on a vehicle of some kind, but they were so deceptive he didn't know what they were on; that a second or so later when he realized the vehicle was parked on the...