Knudson v. Boren

• Decision Date: 28 October 1958
• Docket Number: No. 5818.,5818.
• Citation: 261 F.2d 15
• Parties: Glenn KNUDSON, Stanley M. Price, Travelers Insurance Company and St. Paul Mercury Insurance Company, Appellants, v. I. L. BOREN, d/b/a Rio Pecos Oil Company, and Jose Larranaga, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

261 F.2d 15 (1958)

Glenn KNUDSON, Stanley M. Price, Travelers Insurance Company and St. Paul Mercury Insurance Company, Appellants, v. I. L. BOREN, d/b/a Rio Pecos Oil Company, and Jose Larranaga, Appellees.

No. 5818.

United States Court of Appeals Tenth Circuit.

October 28, 1958.

Charles B. Larrabee, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., were with him on the brief), for appellants.

George T. Harris, Jr., Albuquerque, N. M. (J. R. Modrall, of Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M., was with him on the brief), for appellees.

Before MURRAH, PICKETT and BREITENSTEIN, Circuit Judges.

PICKETT, Circuit Judge.

Glenn Knudson, Mary Knudson and Stanley M. Price brought this action to recover damages for personal injuries resulting from a collision on a New Mexico highway between the automobile in which they were riding and a pickup truck owned by the defendant Boren and driven by his employee, the defendant Larranaga. The defendants denied any negligence on the part of Larranaga and also pleaded contributory negligence. Boren counterclaimed for damages to his truck, and Larranaga for personal injuries. The case was tried to the court without a jury, which denied recovery to all parties except Mrs. Knudson. Only the plaintiffs Glenn Knudson and Price appeal. The questions presented are whether the court's findings of fact and conclusions of law support the judgment; whether the negligence of Glenn Knudson, the driver of the car, can be imputed to the plaintiff Price; and whether the finding that there was negligence on the part of Knudson was supported by substantial evidence or was contrary to the clear weight of the evidence.

The material facts are these: Price and Glenn Knudson were employees of Sperry Rand Corporation in Los Angeles, California. At about three o'clock in the afternoon of March 7, 1957 they left Los Angeles in Price's car for the purpose of traveling to St. Paul, Minnesota, where they had been assigned for training in a company school. Mrs. Knudson accompanied them but intended to go only as far as Iowa. The party, with Price driving the entire distance, arrived at Phoenix, Arizona about midnight. They left Phoenix between midnight and one o'clock with Knudson driving until he was relieved by Price at about four o'clock. They left Socorro, New Mexico at six o'clock in the morning with Price driving. Near eight o'clock Price, feeling tired, awakened Knudson and asked him to drive.¹ Knudson testified that during the night, when he was not driving, he was able to sleep about three hours. Knudson continued to drive until the accident occurred shortly after nine o'clock, at which time Price and Mrs. Knudson were asleep in the back seat of the automobile. Neither had any recollection of the events surrounding the accident except those which occurred after regaining consciousness a considerable time later. Knudson was seriously injured and regained consciousness about the same time as the others did and also remembered only what happened thereafter. Although Knudson was not treated for concussion or other head injury, he could not remember anything about the collision or what occurred a short time before.

Just prior to the accident, the defendant's pickup truck was being driven in a westwardly direction, some distance behind a mail truck, at a speed of 20 to 30 miles per hour. The driver of the mail truck testified that he was preparing to make a lefthand turn onto a country road when he observed plaintiff's automobile approaching from the west at a high rate of speed and weaving back and forth on the highway. He brought his truck to a stop on the north side of the road and, after the oncoming car passed, he turned to watch it. He said it continued to weave from the south edge to the center line of the highway and struck defendant's truck while it was traveling in the westbound lane of traffic, approximately 100 yards to the east. Larranaga's testimony was to the same effect.²

When the New Mexico highway patrolmen investigated the accident, they found plaintiff's car off the road on the south side, facing west. Defendant's truck was on the highway in the westbound lane of traffic, facing south. At the time of the investigation no skid marks were visible which would indicate that the driver of plaintiff's car had applied its brakes. There was a gouge mark on the pavement in the eastbound lane of traffic which apparently was made by plaintiff's car after the left front wheel was torn off. Later in the afternoon, when one of the highway patrolmen was driving past the scene of the accident, he noticed that there were visible some skid marks which proceeded to the point where the two vehicles came together. Photographs were taken later which show a rather faint tire track to the south of the highway center line, leading to the point of the collision, and then swerving abruptly to the right, as plaintiff's car did. This faint track was said to have been made by the left wheels of plaintiff's automobile. These marks were in a straight line for over 80 feet, and ran slightly toward the center of the highway to the point where they suddenly turned to the right. The photographer testified that south of this track was another paralleling "thin line". An expert on the reconstruction of traffic accidents testified without objection, that from his examination of the damage to the two vehicles, together with the tire marks, cuts in the pavement, and debris, the collision occurred in the eastbound lane of traffic. He also explained that under certain light conditions skid marks of this kind are not visible. The court apparently accepted this version, as it denied recovery to the defendants on their counterclaims. The court also found that the driver of plaintiff's car was negligent in that he "just prior to the accident in question, did not have his vehicle under proper control", and that he "was not maintaining a proper lookout for traffic upon the highway". The defense of contributory negligence was based upon the failure of the driver of Price's car to maintain a proper lookout and to keep the vehicle under proper control. These findings, if sustained by substantial evidence, are sufficiently comprehensive and pertinent to the issues of the case to sustain the conclusion that the driver of plaintiff's car was guilty of contributory negligence, which would bar recovery. Trentman v. City and County of Denver, Colo., 10 Cir., 236 F. 2d 951, certiorari denied 352 U.S. 943, 77 S.Ct. 265, 1 L.Ed.2d 239; Weber v. McKee, 5 Cir., 215 F.2d 447; Summerbell v. Elgin Nat. Watch Co., 94 U.S.App.D.C. 220, 215 F.2d 323; Norwich Union Indemnity Co. v. Haas, 7 Cir., 179 F.2d 827.

We cannot agree with plaintiffs' contention...