Kraklau v. Bayman, 14055.
| Decision Date | 06 June 1963 |
| Docket Number | No. 14055.,14055. |
| Citation | 318 F.2d 400 |
| Parties | Ervin T. KRAKLAU, Plaintiff-Appellant, v. Colby BAYMAN, doing business as C. J. Bayman Trucking Company and Marvin Allen Bowers, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Louis P. Miller, Raymond L. McClory, Chicago, Ill., for plaintiff-appellant.
Otto E. Grant, Jr., J. A. Bruggeman, Barrett, Barrett & McNagny, Fort Wayne, Ind., for defendants-appellees.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.
Plaintiff Ervin T. Kraklau brought this action to recover damages for personal injuries resulting from a rear end motor vehicle collision between two trucks. Defendants were Colby Bayman, doing business as C. J. Bayman Trucking Company, owner of a tractor-trailer combination, and Marvin Allen Bowers, driver of the Bayman vehicle. Jurisdiction was based on diversity of citizenship.
Plaintiff charged that his injuries resulted from alleged negligent operation of defendants' vehicle. Trial was had by a jury which returned a verdict in favor of defendants, upon which the trial court entered judgment. This appeal followed.
The sole questions presented for review are whether there was sufficient evidence to sustain the jury verdict and whether the trial court erred in refusing to give to the jury plaintiff's tendered instruction on the doctrine of res ipsa loquitur.
On October 28, 1959, at about 5:30 p. m., plaintiff (age 38) was driving a tractor-trailer combination west on U. S. Highway 20 at the east edge of LaGrange, Indiana. At the same time, defendant Bowers (age 19) was driving the Bayman combination west on said highway behind and following plaintiff.
Highway 20 was intersected near this location by "three sets of railroad tracks." The blacktop surface of the highway at the railroad intersection was worn and rough.
As the two vehicles approached LaGrange they were traveling about 40 or 45 miles per hour. Bowers was following plaintiff at an interval of about 300 feet as they passed over the crest of a hill. They continued down grade toward the railroad crossing. Plaintiff had been aware for some time that defendants' vehicle was following him. Plaintiff knew the crossing was rough and either slowed down to about 5 miles an hour or stopped at the crossing. At the time of the slow down or stop, defendants' combination was about 100 to 125 feet behind plaintiff's truck. Bowers applied his brakes and skidded his truck. But, before he could stop, the front end of defendants' truck collided with the rear end of plaintiff's trailer.
The vehicles were substantially damaged. Plaintiff's head struck and broke a pane of safety glass back of the driver's seat. It is alleged this collision caused his resulting injuries.
Plaintiff's complaint charged defendants with eleven acts of causal negligence. These may be summarized as generally charging Bowers with negligent operation of Bayman's truck in following plaintiff, failing to avoid the collision and having his truck equipped with inadequate brakes.
Defendants contended they were free from negligence and that the accident was caused by plaintiff's negligence in bringing his truck to a sudden stop at the railroad crossing without sufficient warning to enable Bowers to avoid the collision.
We do not deem it necessary to further summarize the evidence concerning the events preceding the accident and the collision itself. It is sufficient to say that it was in sharp conflict in certain material respects and cannot be reconciled.
It is elemental that in reviewing the question of sufficiency of the evidence to sustain a jury verdict that we must look to all the evidence in the record, together with all reasonable inferences to be drawn therefrom, and in the light most favorable to the prevailing party. The weight to be accorded the testimony of any witness and the credibility of witnesses are matters peculiarly within the sole province of the jury. We are not warranted in setting aside a jury verdict where the evidence and inferences properly drawn therefrom are such that reasonable men in the fair and impartial exercise of their judgment may reach different conclusions therefrom. In a case such as...
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...as to the precise cause of the accident and all the facts and circumstances surrounding the occurrence clearly appear, Kraklau v. Bayman, (1963) 318 F.2d 400 (7th Cir.) (rear end collision, direct conflicting evidence of what occurred); Baker v. Coca Cola Bottling Works of Gary, (1961) 132 ......
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