Kleibor v. Colonial Stores

• Decision Date: 03 February 1947
• Docket Number: No. 5549.,5549.
• Citation: 159 F.2d 894
• Parties: KLEIBOR v. COLONIAL STORES, Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

159 F.2d 894 (1947)

KLEIBOR v. COLONIAL STORES, Inc.

No. 5549.

Circuit Court of Appeals, Fourth Circuit.

February 3, 1947.

J. Bat Smathers and T. A. Uzzell, Jr., both of Asheville, N. C. (Smathers & Meekins, of Asheville N. C., on the brief), for appellant.

R. R. Williams, of Asheville, N. C. (Williams, Cocke & Williams, of Asheville, N. C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is a civil action instituted in the United States District Court for the Western District of North Carolina by John G. Kleibor, the appellant (hereinafter called Kleibor), against Colonial Stores, Incorporated, a Virginia corporation, the appellee (hereinafter called Colonial), for damages for personal injuries arising from an accident which occurred on a highway in North Carolina on September 8, 1945. From an adverse judgment, Kleibor appeals.

The only real question involved on this appeal is whether the lower court erred in its instruction to the jury that unless it found that the truck Kleibor was driving was hit and knocked off the road, Colonial was not liable. Kleibor's counsel offered one instruction, among others offered, to the effect that if the jury found Kleibor was "crowded off the road and caused to wreck in the attempt to avoid a collision", then the defendant Colonial would be liable. The court refused to allow this instruction on the grounds that there was no evidence to support such a finding, and this refusal was consistent with the other instructions which were given. We think this ruling of the lower court was entirely correct.

The accident occurred on U. S. Route No. 25 between Greenville, South Carolina, and Hendersonville, North Carolina, about six o'clock in the afternoon. Just over the state line, on the North Carolina side, there is a straight section of the highway that descends on a slight grade for a thousand feet or so before another curve, to the right, is encountered. Kleibor, driving a one and one-half ton Chevrolet truck, was proceeding on this road in a northerly direction. Somewhere along this straight stretch (the evidence is conflicting), Colonial's truck-trailer, a unit approximately 30 feet long, also traveling North, overtook and passed Kleibor.

The road is of concrete construction, 18 feet wide, with shoulders extending 8 feet on each side. About the time the Colonial truck passed, Kleibor's vehicle left the road, travelled across and along the shoulder, and crashed over and down on a culvert protruding into a ditch beneath the shoulder. Kleibor sustained serious injuries to his back and side. A soldier and his wife, now unidentified, found Kleibor, put him in their car, proceeded to Hendersonville and located Darby, the driver of the Colonial truck, who was ignorant of Kleibor's accident.

In paragraph 5 of Kleibor's complaint, it was alleged that Colonial's truck struck the truck driven by Kleibor, and in paragraph 7(b) the words "collided with" are found; but in paragraph 7(c) the allegation of negligence is asserted as being in "either striking * * * or crowding the truck which the plaintiff was driving to such an extent that it had to give way to the defendant's truck."

At the trial Kleibor testified along these lines: that less than 100 feet from the curve to the right, Darby sounded the horn of the Colonial truck and started to pass; that he (Kleibor) was going but 10 miles per hour at the time; that before the Colonial truck got around him, a car appeared (from around the curve) going in a direction opposite to the direction in which the Kleibor and Colonial trucks were passing; that the Colonial truck was forced to cut in sharply to avoid a collision with the oncoming car. Kleibor then went on to testify that the trailer part of the Colonial unit struck his front fender and, in his own words, that he was hit "big enough to bend the fenders inside out."

Darby told an utterly different story. He testified that some 500 feet or more from the curve he sounded his horn to pass Kleibor, but Kleibor was in the middle of the road and in order to pass, he found it necessary to direct the Colonial truck over on the left shoulder of the road. Darby also testified that there was no car coming from the opposite direction; that (when his truck passed Kleibor's truck) there was a distance of several feet between the trucks, and (consistent with his ignorance of the accident) he denied that his truck struck Kleibor's truck.

Kleibor, therefore, was the only one who was in a position to tell what happened to him as the Colonial truck passed. He gave an undeviating account of the accident and that testimony furnishes a complete answer to the question his counsel would raise in this Court. Kleibor gave an emphatic repudiation to that part of the complaint charging that he was "crowded" and insisted repeatedly that he was "hit and knocked off the road." On direct examination, Kleibor testified that "the back end of his (the Colonial) truck knocked me off the road while his truck was on the highway," and that he had never stated that he was "crowded off the road." In answer to a question on cross-examination as to why the complaint contained the statement as to being "crowded", Kleibor replied: "My truck was struck by his truck as it says in that thing. I never said `crowded off the road' in my statement." To additional questions, he explained that his attorney had added the statement as to his being crowded off the road, which he again repudiated.

Such testimony by Kleibor himself, which was opposed directly by the testimony of Darby, and the evidence of other witnesses...