Komer v. Shipley, 11490.

• Decision Date: 15 May 1946
• Docket Number: No. 11490.,11490.
• Citation: 154 F.2d 861
• Parties: KOMER v. SHIPLEY.
• Court: U.S. Court of Appeals — Fifth Circuit

154 F.2d 861 (1946)

KOMER v. SHIPLEY.

No. 11490.

Circuit Court of Appeals, Fifth Circuit.

April 16, 1946.

Rehearing Denied May 15, 1946.

Dewey Knight, of Miami, Fla., for appellant.

Abe Aronovitz, of Miami, Fla., for appellee.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

The plaintiff, a citizen of New York, brought suit for personal injuries in the Circuit Court of Broward County, Florida, against the defendant, a citizen of Michigan. The defendant removed the case to the federal court on the ground of diversity of citizenship. Plaintiff alleged that on January 4, 1939, at about 10 p. m. he was walking eastwardly along the northerly side of the Hollandale Beach Road in Broward County, Florida; and that the defendant was driving his automobile easterly on said road and did negligently drive the same into and against plaintiff, and as a result plaintiff sustained serious injuries. The defendant answered: (a) He was not negligent. (b) The plaintiff was contributorily negligent. (c) For the consideration of the sum of $250, plaintiff had executed a general release in favor of the defendant under date of January 25, 1939. The plaintiff replied to defendant's allegation of a general release by pleading that at the time of the execution of the release the plaintiff lacked the mental capacity to understand and appreciate the nature of the instrument.¹ The court without a jury heard in a separate trial evidence on the question of mental incapacity. The court then held that the defendant obtained the release while the plaintiff was mentally incompetent, and, therefore, it was not binding upon him. By leave of the court the defendant thereupon pleaded that the plaintiff ratified the release by retention of the $250 after he regained competency; that after the 15th day of April, 1939, the plaintiff was of sound mind and understanding, and that thereafter he retained the consideration for a period of more than one year. On April 25, 1940, the plaintiff did, through his attorney, for the first time tender back to the defendant the said sum. In a trial of the merits, without a jury, the court found that the defendant was negligent and that the plaintiff was free of contributory negligence; that the plaintiff was mentally incompetent to execute the release; and that the defense of ratification had not been sustained. Judgment was accordingly entered in favor of the plaintiff in the sum of $7,500 plus costs. Motion for new trial was filed and denied, and the defendant appealed.

The defendant urges that the trial court's rejection of the plaintiff's pleaded allegations of fact and his testimony and the adoption of the testimony of the police officer, Larson, was reversible error. Plaintiff pleaded that he was walking along the northerly side of the Hollandale Beach Road at the time of the collision, and he testified that he was walking on the grass. Defendant testified that at the time of the collision his automobile was on the right-hand side of the road. The diagram prepared by the officer, Larson,² at the trial shows that the location of the body of a dead bird around which plaintiff walked immediately before the collision was to the left of the center of the road, and that the location of plaintiff's body immediately after the collision was to the left of the center of the road, and that the left skid mark of defendant's car on the pavement was to the left of the center of the road.³ This diagram supported the finding of the district court that the collision occurred within the northerly half of the paved portion of the road and, therefore, to the left of the center. Since the plaintiff's pleading afforded defendant a generalized summary of the case, it complied with the rules of pleading applicable to the federal district court.

Vol. 1, Moore on Federal Practice, at page 450, states:

"The pleading rules are designed to develop the respective stories of the parties as to the past events out of which the litigation grew. They are not restricted by worry and confusion about the form of trial.

* * * * * *

"* * * at the trial stage the case is to be heard on the merits, and is not to be hamstrung by faulty pleadings, unless actual, not conjectural, prejudice results from the faulty pleadings."

Vol. 1, Moore on Federal Practice, at page 440, states: "The modern philosophy concerning pleadings is that they do little more than indicate generally the type of litigation that is involved. The pleadings of a personal injury action cannot catch within their pages a photographic likeness of the accident. A generalized summary of the case that affords fair notice is all that can be expected." See official form 8; 4 Moore 8.47.

The defendant argues that the law of Florida did not require that the defendant's car be wholly on the right-hand side of the roadway. The common law without dissent throughout the states is that where a pedestrian is walking on the left half of the highway and where an automobile on the left half of the highway approaching the pedestrian from his rear collides with the pedestrian, a question of fact as to the negligence of the driver is presented to the trier of the facts. Among the cases applying this common-law rule are: Matazasoszki v. Jacobson, 1936, 122 Pa.Super. 180, 186 A. 227; Igo et al. v. Smith, 282 Ky. 336, 138 S.W.2d 497; Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851, 5 N. W.2d 114; Peterson v. Meehan, 116 Conn. 150, 163 A. 757; Rohrkemper v. Bodenmiller, 287 Mich. 311, 283 N.W. 591; Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 10, Part 1, Perm. Ed., pp. 684, 685; Raymond v. Hill, 168 Cal. 473, 143 P. 743; Ralston v. Tomlinson, 1940, 207 Minn. 485, 292 N.W. 24; Sertic v. McCullough, 1936, 155 Or. 216, 63 P.2d 884; Hubbard v. Thrasher, 26 Ala.App. 252, 157 So. 680; Kelly v. Schmidt & Zeigler, 142 La. 91, 76 So. 250; Dreyfus v. Daronco, 253 Mich. 235, 234 N.W. 587.

In Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851, 5 N.W.2d 114, 115, the Supreme Court of Nebraska, in a syllabus prepared by it, stated:

"Where a pedestrian, * * * is walking at night on the left-hand side of the highway and is struck by a vehicle approaching from his rear, it is for the jury to determine if the operator of the vehicle was negligent in not seeing the pedestrian in time to avoid the accident.

"Under such circumstances the pedestrian had the right to assume that the driver of a vehicle approaching from the rear would exercise ordinary care in keeping a lookout for him and others using the highway."

Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 10, Part 1, Perm. Ed., pp. 684, 685, states: "Where the theories of opposing parties are conflicting, issues of fact or of mixed law and fact should be submitted to the jury. Thus the negligence of a motorist who * * * drove on the wrong side of the street or road * * * is a question of fact for the jury, in the absence of any legal defense barring the action, if there is any substantial evidence supporting the plaintiff's claim."

In Raymond v. Hill, 168 Cal. 473, 143 P. 743, 747, the Supreme Court of California said: "But under the circumstances shown in this case, certain very important considerations differentiate the rights and duties of plaintiffs and defendant. Some of these will readily occur to mind. One is that the pedestrians were traveling on a part of the road and under circumstances where they could reasonably look for vehicles approaching them from the front, but would not naturally be expected to contemplate that an automobile would come up behind them, and they were under no legal obligation to look back to see whether they were in danger of being struck from behind. Elliott, Streets & Roads (3d Ed.) § 1088. Another is that to the driver of the automobile the pedestrians were plainly visible. The automobile was not visible to the pedestrians. Still a third is that it was within the power of the automobile to inflict injury or death. Such was not the power of the pedestrians. Upon the part of the driver of the automobile, therefore, we have a known approach to foot passengers, with the power to inflict grave injury. Upon the part of the foot passengers we have the unconsciousness of such approach, with absolute inability to inflict injury and a measurable inability to avoid the infliction of injury. While both parties are charged only with the exercise of the same degree of care, it is manifest that the amount of that care by law exacted of the driver of the motor vehicle is far greater than the amount exacted of the foot passengers. Of the driver of a vehicle under such circumstances, the law in terms requires that he shall not only give reasonable warning of his approach, but `use every reasonable precaution to insure safety.' * * *"

The contention that the plaintiff's failure to watch for cars approaching from his rear was contributory negligence as a matter of law, and as such should bar his recovery, finds no support in the jurisprudence.

The courts generally hold that where a pedestrian is walking on the left half of the road facing traffic that would approach him and where an automobile approaching from his rear on the left half of the highway collides with the pedestrian, contributory negligence on the part of the pedestrian is a question for the trier of the facts. Matzasoszki v. Jacobson, supra; Igo et al. v. Smith, supra; Cf. Johnson v. Anoka-Butte Lumber Co., supra (the court held as a matter of law the pedestrian was not contributorily negligent); Murphy v. Granz, 91 N.H. 244, 17 A.2d 449; Burns v. Cote, 86 N.H. 167, 164 A. 771; Peterson v. Meehan, supra; O'Connor v. Zavaritis, 95 Conn. 111, 110 A. 878; Rohrkemper v. Bodenmiller, supra; Randolph v. Hunt, 41 Cal.App. 739, 183 P. 358; Raymond v. Hill, supra, California.

In Matzasoszki v. Jacobson, supra, the Superior Court of Pennsylvania, 1936, said 122 Pa.Super. 180, 186 A. 228:

"There was no sidewalk, and in its absence...