Jennings v. United States, No. 8117.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: SOBELOFF, , HAYNSWORTH, Circuit , and STANLEY
• Citation: 291 F.2d 880
• Parties: Anna JENNINGS, Administratrix of the Estate of Stewart Earl Jennings, deceased; State of Maryland, to use of Anna Jennings, surviving wife, Anna Frances Jennings, a minor, Russell Earl Jennings, a minor, Gregory Stewart Jennings, a minor, and the unborn child or children, en ventre sa mere, of Stewart Jennings; Margaret M. Jennings, in her own right as mother and next friend of Donald S. Jennings and Donald S. Jennings in his right, Appellants and Cross-Appellees, v. UNITED STATES of America, Appellee and Cross-Appellant.
• Docket Number: No. 8117.
• Decision Date: 04 May 1961

291 F.2d 880 (1961)

Anna JENNINGS, Administratrix of the Estate of Stewart Earl Jennings, deceased; State of Maryland, to use of Anna Jennings, surviving wife, Anna Frances Jennings, a minor, Russell Earl Jennings, a minor, Gregory Stewart Jennings, a minor, and the unborn child or children, en ventre sa mere, of Stewart Jennings; Margaret M. Jennings, in her own right as mother and next friend of Donald S. Jennings and Donald S. Jennings in his right, Appellants and Cross-Appellees,
v.
UNITED STATES of America, Appellee and Cross-Appellant.

No. 8117.

United States Court of Appeals Fourth Circuit.

Argued October 11, 1960.

Decided May 4, 1961.

291 F.2d 881

David L. Rose, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Leon H. A. Pierson, U. S. Atty., Baltimore, Md., and Morton Hollander, Atty., Dept. of Justice, Washington, D. C., on brief), for appellee and cross-appellant.

Paul R. Connolly, Jr., Washington, D. C. (David N. Webster, and Hogan & Hartson, Washington, D. C., on brief), for appellants and cross-appellees.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and STANLEY, District Judge.

HAYNSWORTH, Circuit Judge.

The tragedy out of which these cases arose occurred in Maryland on a highway constructed and maintained by the United States Government. On the morning of January 23, 1956, Stewart Earl Jennings, a civilian employee of the United States, was driving his automobile from his home in Maryland to his place of work in the District of Columbia. Stewart's brother, Donald S. Jennings, was a passenger in the car. At about 7:30 a. m., while driving on Suitland Parkway in Maryland, a highway under the control of the National Capital Park Bureau, Department of the Interior, Stewart's automobile skidded on a patch of ice on the road, went out of control, and collided with an oncoming automobile in the opposite lane of traffic. Stewart Jennings was killed and his brother, Donald, was seriously injured.

Thereafter, based upon the alleged negligence of the United States, three suits were filed under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2674, in the United States District Court for the District of Maryland. The Administratrix of Stewart Jennings' estate brought an action for Stewart's conscious pain and suffering before death, for loss of his automobile, and for funeral and burial expenses. An action was also brought to the use of Stewart's widow and four children under the Maryland Lord Campbell's Act, Code 1957, art. 67, § 1 et seq., for damages resulting from his alleged wrongful death. There was a third suit based on the injuries suffered by Stewart's brother, Donald Jennings.

In a lengthy trial, much evidence was presented bearing on the construction of the road at the particular place, the weather conditions preceding the time of the accident, the driving hazard at this point, the notice, actual or constructive, chargeable to the Government of the existence of the ice, the alleged contributory

291 F.2d 882

negligence of Stewart Jennings, and the amount of damages. The District Judge found the Government negligent and Stewart Jennings free from contributory negligence. The detailed evidence relating to these questions, together with the findings of the District Judge, are set forth in the Judge's comprehensive opinion. Jennings v. United States, D.C.Md.1959, 178 F.Supp. 516. Damages in the sum of $850 were awarded in the Administratrix's suit, $83,700 in the wrongful death action, and $21,978 in favor of Donald Jennings. The plaintiffs have appealed, contending that in several respects the District Court erroneously calculated damages, and the Government has cross-appealed, raising issues of liability and contributory negligence, and it also attacks the computation of damages

The principal issue is raised by the Government and concerns the extent of a defendant's liability for injuries caused by icy conditions on a roadway under its control. As the accident happened in Maryland, the law of that state is to be applied.

Suitland Parkway, built by the United States Army Engineers in 1944 as a military highway, runs in a generally east-west direction from Andrews Air Force Base on the East to South Capital Street in the District of Columbia on the West. On that portion of it where the accident occurred it has a concrete surface providing two traffic lanes, one for traffic moving in each direction. As modern highways are, it is banked on curves and, at the point where the accident occurred, there is a slight curve so that the northern edge of the highway is slightly higher than the southern edge. Necessarily, water from melting ice and snow piled on the shoulder of the high side of the roadway will drain across the highway surface.

On Thursday, January 19, 1956, there had been a heavy snow. Plows had removed the snow from most of the road surface, piling it up on the edges of the road and on the shoulders. Sunday, January 22, was warm and the accumulated snow and ice was melting. In many places, water from melting snow was draining across the roadway. The thawing conditions continued in general throughout the night of the 22nd-23rd. The official temperatures at the Washington National Airport show that the temperature fell on the afternoon and evening of the 22nd from a high of 46° F. at 3:00 o'clock in the afternoon to 37° F. at midnight.¹ The reading was 36° F. at 1:00 a. m. and at 2:00 a. m. on the morning of the 23rd. It dropped to a low of 35° at 3:00 a. m., and was back up to 37° at 4:00 a. m. on that morning. It was again 36° at 5:00 o'clock and at 6:00 o'clock, and climbed again to 37° at 7:00 o'clock, and that reading was also recorded at 8:00 o'clock. The temperature fell again to 35° at 9:00 o'clock and to 32° at 10:00 o'clock on the morning of the 23rd.

Despite the fact that the official records indicated that the temperatures at the Washington National Airport were above freezing throughout the night of January 22-23, one witness testified that between 10:00 and 11:00 o'clock on the evening of the 22nd, he saw a patch of ice at an unspecified point on the highway and felt his rear wheels slip as he passed over it. One of the officers who patrolled the highway that night felt his wheels spin when he passed over what he supposed to be patches of ice while on his way to work, but he testified that when he looked for it later, while on his official patrols, he found no ice. Mrs. Jennings' brother and sister, in separate automobiles, each testified that a patch of ice was encountered on the parkway around midnight. A number of witnesses traveling on the highway between approximately 6:00 o'clock and 7:30 o'clock on the morning of the 23rd testified that they saw or felt themselves passing over a patch of

291 F.2d 883

ice at a point approximately seventenths of a mile east of Forestville Road, the point where the accident occurred. There was no specific testimony that ice was at that particular place at an earlier hour. Unquestionably, there was a patch of ice on the roadway, observed by many witnesses, shortly after the accident. One of the officers investigating the accident called for sand, but, inexplicably, when the sand truck arrived at approximately 8:15 o'clock there was no longer any ice though the surface of the highway was wet from the melting snow, and though the official weather reports indicate that the temperatures were falling after 8:00 o'clock that morning and reached 32° F. by 10:00 o'clock

Suitland Parkway is maintained by the National Capital Park Bureau. The officers on duty on the night of January 22-23, including the one who thought from the feel of his wheels that he had passed over patches of ice on his way to work prior to 11:00 o'clock on the evening of the 22nd, testified that they encountered no ice on their patrols, though they were looking for it and though they made some six or seven round trips over the entire length of the highway during the night. There were two places, not the scene of the accident, one at the intersection of an access road and another where there was an overpass, which they thought prone to become icy when the rest of the roadway was unfrozen. Those two places they particularly checked, and at one of them one of the officers got out of the car to make certain by the feel of his foot that the substance on the roadway was indeed water and not ice.

Throughout the night of January 22-23, as on other similar nights in the wintertime, there was a loaded sand truck available on call to sand the roadway in the event of icing. The sand truck could have been summoned by the patrolling officers by use of their radio, but the official log disclosed no request for sand and the patrolling officers testified they requested no sand, for they encountered no ice.

Nevertheless, and though there was only water on the roadway, shortly after 8:00 o'clock, as we have indicated, there clearly was a patch of ice on the roadway at or near the point where Stewart Jennings lost control of his automobile at approximately 7:30 o'clock on the morning of the 23rd, with the result that there was a head-on collision with a vehicle proceeding in the opposite direction.

The District Judge found that the patch of ice, observed by many witnesses during the early hours of daylight on the 23rd, had formed sometime prior to midnight. He concluded that it was a dangerous condition which the patrolling officers discovered, or should have discovered, and that they should have taken steps to mitigate the danger it posed for traveling motorists. Since they had done nothing to eliminate the condition, he held that the United States was liable for the resultant injuries under the Tort Claims Act.

The principle that a municipality is bound to abate nuisances in the highways under its control if it knows of them, or should have known of them, has been applied with a soft hand by the Maryland courts to snow and ice. As he...