Johnson v. Hill

• Decision Date: 20 January 1960
• Docket Number: No. 16079.,16079.
• Citation: 274 F.2d 110
• Parties: Jerroll JOHNSON, Appellant, v. Stanley HILL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

274 F.2d 110 (1960)

Jerroll JOHNSON, Appellant, v. Stanley HILL, Appellee.

No. 16079.

United States Court of Appeals Eighth Circuit.

January 20, 1960.

COPYRIGHT MATERIAL OMITTED

Francis J. Magill (of Nilles, Oehlert & Nilles), Fargo, N. D., for appellant.

William E. Kalar (of Halloran & Kalar), Minneapolis, Minn., for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and BLACKMUN, Circuit Judges.

MATTHES, Circuit Judge.

This case grew out of two collisions in which three automobiles were involved. Stanley Hill, the operator of one of the vehicles, sustained serious and permanent injuries, for which he received a jury verdict and judgment against defendants Jerroll Johnson and Lawrence Fernow, the drivers of the other two automobiles, in the sum of $38,250. Defendants unsuccessfully moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. Defendant Johnson alone has appealed. We have jurisdiction because of diversity and the amount involved.

The underlying question for determination is whether the evidence was sufficient to support the verdict and judgment against Johnson. He contends one, that as a matter of law, plaintiff failed to show any negligence on his part, and two, that the evidence shows that the sole proximate cause of the collision and plaintiff's injuries was the negligence of defendant Fernow.

As an appellate court, our duty is clear. We must not weigh the evidence or substitute our judgment for that of the jury as to reasonable inferences which follow therefrom. Plaintiff is entitled to have all disputed facts resolved in his favor, and we must likewise accord plaintiff the benefit of every fair and reasonable intendment that the evidence will justify. See Cram v. Eveloff, 8 Cir., 127 F.2d 486, 487.

In many respects this is a typical automobile collision case in which the battle line was drawn between the two defendants as contesting parties in so far as the question of liability is concerned. Neither defendant made any serious effort to establish that plaintiff was in any way responsible for the collision between his vehicle and the Johnson automobile, rather each tried to place the entire blame on the other.¹

The applicable substantive law is that of North Dakota. No useful purpose can be served by a detailed recitation of the facts. As was so aptly stated by Judge Sanborn in speaking for the court in Berlo Vending Co. v. Massey, 8 Cir., 260 F.2d 832, 833, 834:

"An exhaustive opinion in these personal injury cases arising out of automobile accidents ordinarily adds nothing to either legal lore or legal literature. The parties and their counsel are familiar with the evidence, which can be of little interest to others. The burden of demonstrating error and prejudice is on the appellant, and in a diversity case governed by state law that burden is a heavy one. See Homolla v. Gluck, 8 Cir., 248 F.2d 731, 734."

The undisputed facts show that the collisions took place on State Highway No. 32, a north and south highway, near Lisbon, North Dakota, shortly after 5 o'clock p. m. on July 21, 1956. The highway was surfaced or paved with tarvia, commonly called blacktop. The pavement was 22 feet wide with a 5-foot shoulder on each side of the paved surface. The highway was straight and level for a distance of approximately 1,200 feet south of the point of accident, then there was an incline or upgrade for a distance of approximately 1,350 feet to the crest of a hill, which was approximately 2,550 feet south of the accident scene. This overall segment of the highway was referred to as the "Five Mile Hill." The legal maximum speed on this highway was 65 miles per hour. Plaintiff was proceeding southwardly in the lane for southbound vehicles, at a speed of 60 miles per hour. There were 4 northbound vehicles. The most northerly one was an automobile which was pulling a small trailer. It was owned and occupied by Edward Sandstrom and was being driven by his son. The most southerly vehicle was being driven by Kenneth Alden Cavett. Between the Sandstrom and Cavett vehicles was the automobile being driven by defendant Johnson, which was followed by defendant Fernow. There were two collisions, one between the Johnson and Fernow vehicles, the other between Johnson's and plaintiff's vehicles. The collision in which plaintiff was involved occurred in his southbound lane of traffic. With the exception of evidence pertaining to physical facts, such as skid and gouge marks and position of vehicles following the collisions, concerning which there was likewise no dispute, we find considerable discrepancy as to other pertinent elements of the litigated incidents. In his brief, appellant has presented to us the evidence most favorable to him, but there is controverting and adverse evidence in the record from which the jury could find or legitimately infer that the collisions came about in this manner:

Johnson and Fernow, if not friends, were acquaintances. The day of the accident, they met in a Lisbon cafe after each separately had attended a local fair. Leaving the cafe together, each began his separate journey to Enderlin, North Dakota, to return to work. The jury had before it testimony by a disinterested witness to the effect that Fernow and Johnson, upon leaving Lisbon, were observed to be driving at a high rate of speed, side by side, up a hill, with Fernow's vehicle in the passing lane.

As the Cavett vehicle was proceeding down the Five Mile Hill at a speed of 45 miles per hour, it was passed by the Johnson and Fernow vehicles in that order, traveling at a speed of between 80 and 90 miles per hour with approximately 100 feet separating them. At that time the Sandstrom vehicle was approximately one-half mile north of Cavett. Johnson and Fernow continued at a high rate of speed until Johnson overtook the Sandstrom automobile and trailer which were traveling at only 27 miles per hour. Johnson pulled slightly to the left of the center line to determine whether he could pass the Sandstrom vehicle, then swerved back and for the first time applied his brakes suddenly and with force. The application of the brakes was the first signal given to Fernow that Johnson intended to slacken the speed of his vehicle. At this point Fernow was 75 to 100 feet behind Johnson, and both vehicles were moving at a speed of between 70 and 75 miles per hour. Because of the sudden slackening of the speed of Johnson's automobile, the left front of Fernow's automobile struck the rear of Johnson's automobile, which in turn swerved to the left, coming into violent collision with the left front and left side of plaintiff's vehicle.

The physical facts were established by the testimony of the highway patrolman who made the post-collision investigation and by photographs and a large plat drawn and prepared by an engineer. No useful purpose will be accomplished in detailing these facts. Suffice it to say, that the gouge and skid marks together with the demolished condition of plaintiff's and Johnson's vehicles were sufficient to warrant the inference that the Johnson and Fernow vehicles were moving at a high rate of speed immediately before the collisions.

We first take up the question of Johnson's negligence. In North Dakota the driver of a motor vehicle is under a statutory duty not to stop or suddenly decrease the speed of his vehicle "without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal." (Emphasis added.) § 39-1038, N.D.R.C.1943, 1957 Supplement. Section 39-1039 of the North Dakota statute provides that a stop signal shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device. In construing nearly identical statutes of Utah and Minnesota, under facts analogous to the instant situation, it was held that a jury question was presented as to whether the driver of the lead vehicle had warned the driver of the vehicle following closely behind, by appropriate signal, of his intention to stop or suddenly decrease his speed. See United States v. First Sec. Bank of Utah, 10 Cir., 208 F.2d 424, 429, 42 A.L.R.2d 951; Benson v. Hoenig, 228 Minn. 412, 37 N.W.2d 422, 425. Compare also Ryan v. Griffin, 241 Minn. 91, 62 N.W.2d 504, 507.

It is to be noted that giving a signal is not in itself sufficient statutory compliance. It must be an appropriate signal. Here, Johnson admitted seeing plaintiff approaching when he was about 9/10 of a mile away; at the same time, Johnson saw the northbound Sandstrom vehicle ahead of him. The jury was justified in finding that Johnson continued at a speed of 70 to 75 miles per hour, when he knew, or by the exercise of ordinary care could have known, that Fernow was following closely behind and at the same rate of speed; that Johnson gave no signal until he depressed the brake pedal, and suddenly decreased the speed of his vehicle, this at a time when Fernow, who testified he did not see the vehicles of Sandstrom or plaintiff, was within 75 to 100 feet of Johnson, and traveling at a high rate of speed. This evidence furnished adequate basis for a finding that the flashing of the brake light was not an appropriate signal under the circumstances.

Closely allied to the question of Johnson's negligence is the factor of proximate cause. Fernow's negligence is clear; it is apparent that he was traveling at an excessive speed; and that he was following Johnson's vehicle more closely than was reasonable and prudent, contrary to North Dakota law. It was stipulated that Fernow pleaded guilty to a criminal charge of aggravated reckless driving. In this connection, Johnson, posing as the innocent victim of circumstances, hurtled into plaintiff's vehicle through no fault of his own, strongly urges that Fernow's negligence was the sole proximate cause of plaintiff's injuries. This claim of immunity rests upon Johnson's somewhat...