Jimison v. United States

• Decision Date: 03 May 1967
• Docket Number: Civ. No. 537.
• Citation: 267 F. Supp. 674
• Parties: Ray JIMISON and Ethel Jimison, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Montana

267 F. Supp. 674

Ray JIMISON and Ethel Jimison, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 537.

United States District Court D. Montana, Billings Division.

May 3, 1967.

McDonough & Cox, Glendive, Mont., and Gene Huntley, Baker, Mont., for plaintiffs.

Moody Brickett, U. S. Atty., Butte, Mont., and Clifford E. Schleusner, Asst. U. S. Atty., Billings, Mont., for defendant.

OPINION

JAMESON, Chief Judge.

This action was brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b) and 2671-80¹ to recover damages for personal injuries sustained by the plaintiff Ethel Jimison and property damage sustained by both plaintiffs in an automobile collision on July 15, 1963.

The accident occurred about midday on a bridge across the Missouri River on U.S. Highway No. 16, three miles south of Culbertson, Montana. The weather was clear and dry, and the visibility good. Highway No. 16 is an asphalt paved two lane highway, 21 feet in width. The bridge is paved with concrete, and where the highway crosses the bridge, it narrows to 20 feet in width. The bridge itself, extending in a north-south direction, has three sections. The northerly and middle sections are each 383 feet in length and have overhead steel spans. The southerly section is 355 feet long and is not covered by an overhead span.

From the south end of the bridge, the highway is straight for 2100 feet with a slight elevation toward the south, at which point there is a curve in the road. For this distance at the very least, the view to the bridge is unobstructed. From the end of the most northerly section of the bridge, there is a 52 foot uncovered portion of the bridge and several hundred feet of roadway to the north where there is another curve.

On the day of the accident, Clifford Ramsbacher, an employee of the defendant United States, was collecting stream flow data pursuant to his employment by the United States Geological Survey. The data is collected by means of a device lowered into the water on a cable suspended from a vehicle called a bridge crane. The crane's exterior dimensions are approximately four feet square, and it is painted a bright orange color. Ramsbacher had begun measuring the river late in the morning and at the time of the accident the bridge crane was positioned near the center of the middle section of the bridge (the more southerly of the covered spans) next to the railing in the northbound lane of traffic. Ramsbacher testified that before he commenced the measuring operation, he had placed "Men Working" signs which were about 18 inches square, to the north and south of his position on the bridge. One sign was placed at the north end of the north 52 foot uncovered section, and the other at approximately the center of the most southerly section of the bridge.²

The plaintiff Ethel Jimison was a passenger in a 1957 Chevrolet four door sedan proceeding in a northerly direction and driven by her son Jerry. The automobile was owned by Mrs. Jimison and her husband, Ray Jimison. Mrs. Jimison was sitting in the front seat with Jerry. Her mother and other children were in the rear seat.

Four to seven miles south of the bridge, the Jimison automobile passed a 1950 Buick driven by Tony Bucciarelli. The Jimison automobile was traveling 60 to 65 miles per hour and the Bucciarelli car was traveling 50 to 55 miles per hour.

Several minutes later the Jimison car rounded the curve in the highway approximately one-half mile from the bridge. As the car came around the curve, Jerry Jimison noticed a "speck" on the bridge ahead.³ When he was approximately 700 feet from the south end of the bridge, or more than 1200 feet from the bridge crane, he could distinguish Ramsbacher and a "box" in his lane of traffic on the bridge. He slowed his automobile to 25 or 30 miles per hour. As he was slowing, he also noticed two large seismograph water trucks coming down the incline on to the north end of the bridge and realized that he would not have enough room to pull into the southbound lane of traffic and pass Ramsbacher and his machine. At this time Ramsbacher raised his hand toward the Jimison car, and Jerry Jimison brought it to a stop about 60 feet south of the bridge crane. During the stopping sequence Jerry Jimison was "riding" the brake, and had his foot continuously on the brake pedal for some 900 feet before he stopped. The brake lights on the Jimison automobile were in good working condition.

Within a few seconds⁴ after the Jimison automobile was brought to a full stop, the car driven by Bucciarelli collided with the rear of the Jimison vehicle.

Ramsbacher noticed the Jimison and Bucciarelli vehicles shortly after they rounded the curve to the south of the bridge. He watched them intermittently as they approached, and then noticed the two trucks coming down the incline to the north of the bridge. He then signaled to the Jimison vehicle. The trucks did not pass, but stopped to the north of the bridge crane until after the accident.

Bucciarelli first noticed the Jimison vehicle when it passed him several miles south of the bridge. He testified that he did not see it again until he was at the southerly end of the middle section or southernmost covered span of the bridge, some 130 feet from where the Jimison vehicle was stopped. Until this time, he did not see any brake lights, the Jimison car, the bridge crane, Ramsbacher or the trucks; and he was traveling at 55-60 miles per hour. Bucciarelli applied his brakes and tried to stop, but realized that he could not⁵ and pulled out to pass the Jimison vehicle. He then saw the trucks at the opposite end of the bridge, turned back into his own lane of traffic, and struck the Jimison automobile in the left rear.

Plaintiffs contend that defendant was negligent as a matter of law in parking the crane on the bridge;⁶ that it obstructed the highway and failed to give adequate warning through signs or flagmen;⁷ and that its negligence was a proximate cause of the collision.

The defendant contends that even though its employee may have been negligent, his negligence, if any, was not the proximate cause of the collision and was superseded by the intervening negligence of Bucciarelli.

In Montana, a proximate cause is one "`which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which the injury would not have occurred.'" Sztaba v. Great Northern Railway Co., 1966, 147 Mont. 185, 195, 411 P.2d 379, 385; Merithew v. Hill, D. Mont.1958, 167 F.Supp. 320, 327.

There are no Montana cases directly in point. There are cases, however, which have determined the proximate cause of a collision where a moving vehicle strikes a parked vehicle or other obstruction on the highway. The rules followed in these cases assist the court in determining the proximate cause of this accident.

In Boepple v. Mohalt, 1936, 101 Mont. 417, 54 P.2d 857, the plaintiff was injured while riding as a passenger in an automobile owned and driven by her husband, when it collided with a road grader owned by the State of Montana and operated by one of its employees. The grader was headed in an easterly direction, upon its left or north side of the road, and was brought to a stop just before the collision. Plaintiff and her husband both testified that they did not see the grader until it was too late to avoid the collision. In reversing a judgment for the plaintiff and holding that the district court should have granted a directed verdict in favor of the defendant, the court said in part:

"Applying these rules to the facts as disclosed by the evidence in the instant case, we are forced to the conclusion that Boepple could have seen the grader in ample time to have avoided the collision if he had been keeping a proper lookout ahead, in the manner admonished by law. * * *

"Since the evidence shows conclusively that Boepple could have seen the grader at a distance of at least 239 feet if he had been looking ahead as he should have done, he cannot now be heard to say that he did not see it. Under such circumstances, he is, in legal effect, in the position of having actually seen the grader at that distance. (Citing cases) * * *. `Moreover, a person is presumed to see that which he could see by looking. * * * The duty to keep a lookout includes the duty to see that which is in plain sight.'

* * * * * *

"Obviously, the sole and proximate cause of the accident here was Boepple's failure to observe and comply with the above requirements, which the law imposes on him. * * *

"Since, as we have pointed out, the proximate cause of the accident was Boepple's failure to keep a proper lookout, it follows that there is no merit or force in plaintiff's allegations of negligence with respect to defendant's failure to operate the grader upon the right side of the road and his failure to use sufficient and adequate signs and warnings. Even if it were true that defendant was negligent in these particulars, still it is manifest from what we have said already that such negligence was not the proximate cause of the accident; hence such negligence, even if proved, could avail the plaintiff nothing. * * *" (101 Mont. 434-436, 54 P.2d 861).⁸

In Fulton v. Chouteau County Farmers' Co., 1934, 98 Mont. 48, 69, 37 P.2d 1025, a motorist stopped his vehicle on the highway to see if he had done any damage to another vehicle which was blocking the roadway. He was struck by a following vehicle several minutes later. The court held that the stopped plaintiff was not required to "anticipate that the driver of an on-coming car will not see that which is plainly before him, or drive with his car so out of control that he cannot stop when he does see the obstruction, or person, in the line of his travel, when, ordinarily, he would have plenty of time and space within which to avoid the injury."

The rule that a motorist is "presumed to see that which he could see by looking" and "is, in legal effect, in the...