Kuper v. Betzer
| Decision Date | 03 December 1940 |
| Docket Number | No. 11678.,11678. |
| Citation | 115 F.2d 842 |
| Parties | KUPER v. BETZER. |
| Court | U.S. Court of Appeals — Eighth Circuit |
T. R. Johnson, of Sioux Falls, S. D., for appellant.
Holton Davenport, of Sioux Falls, S. D. (Ellsworth E. Evans, of Sioux Falls, S. D., on the brief), for appellee.
Before STONE and GARDNER, Circuit Judges, and OTIS, District Judge.
This was a suit for damages for personal injuries alleged to have been caused by the negligence of appellee, defendant below. The trial judge directed a verdict for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law. Whether there was error in this direction is the principal question presented.
The plaintiff, appellant here, was injured in a collision between the automobile, a Ford, in which, in the rear seat between two other persons, she was riding, and an automobile, a Chevrolet, driven by defendant. The collision occurred in the City of DeSmet, South Dakota, at the intersection in that city of State Highway No. 25, running north and south, and U. S. Highway No. 14, running east and west. The date was July 10, 1938, the time of day, 9:30 a. m. At the instant of collision the Ford was proceeding north on Highway 25, the Chevrolet was proceeding west on Highway 14.
The plaintiff in her petition charged that defendant was negligently driving his automobile at an excessive rate of speed. There was evidence that he was driving at a speed of at least fifty miles an hour. It was conceded by appellee at the oral argument in this court that there was a sufficient showing of defendant's negligence to make an issue as to that matter for the jury.
Since the learned trial judge directed a verdict for defendant for that, as he thought, contributory negligence conclusively was shown, the facts in that connection must be stated fully, with all conflicts in the testimony resolved in plaintiff's favor. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Nielsen v. Richman, 8 Cir., 114 F.2d 343. So resolving conflicts, the evidence was as follows. The driver of the Ford, in which plaintiff was riding, before he entered the intersection, brought his automobile to a full stop. The front wheels of the Ford were then in line with a stop sign in the parking at the east side of Highway 25 and approximately 20 feet south of a line projected along the south line of the pavement on Highway 14 and approximately 30 feet south of the center of the intersection. The collision occurred in the northeast quarter of the intersection when the Ford was just across the center line. When the Ford had stopped at the stop sign not only the driver, but also the plaintiff, looked to the east along Highway 14. Neither saw defendant's automobile approaching. It was not then in sight. The driver of the Ford then started across the intersection, increasing his speed as he proceeded to between 5 and 10 miles an hour.
We set out now in haec verba a part of the testimony of the driver:
We set out also certain of the testimony of the plaintiff. The first question set out is with reference to the stop sign immediately south of Highway 14 and to the conduct of the driver.
The plaintiff further testified:
On cross-examination the plaintiff testified:
Effect of Physical Facts.
1. Obviously if this testimony of the plaintiff is accepted, and it must be unless in a situation we shall presently discuss, the plaintiff not only is not shown to be guilty of contributory negligence, but her innocence of contributory negligence is clear. The contributory negligence charged against her was that she should have seen the approaching car and should have warned the driver. The uttermost limit of her duty, however, was to warn the driver if she saw a car approaching — but, although she looked as the Ford entered the intersection, she did not see the approaching car until it was within 30 feet.
The jury of course might not have believed the plaintiff's nor the driver's testimony. Very probably the trial judge did not believe all their testimony and he had every opportunity to observe the witnesses and to apply to their testimony the established tests. Even a reading of the cold record leaves us in great doubt as to whether the plaintiff's or the driver's testimony, in the excerpts we have set out, in all respects is true. But neither this court nor the court below are the judges of the credibility of the witnesses. That function is the jury's in a case tried to a jury. Elzig v. Gudwangen, 8 Cir., 91 F.2d 434. This court and the trial court ordinarily must accept as true the testimony even of a veritable Munchausen in the uttermost stretches of his imaginings.
Of course the learned trial judge had the rule we just have stated fully in mind. We assume he acted pursuant to an exception to the rule. (We say again as often we have said before that we welcome explanations by trial judges of their important rulings, explanations dictated into the record at the time rulings are made or embodied in a memorandum subsequently filed: such explanations frequently supply reasons of sufficient weight to turn the scale when doubtful points are argued in this court.) We assume the trial judge regarded the physical facts as inconsistent with and negativing the oral testimony and that he was actuated by the principle that, in ruling a motion for a directed verdict, the court should disregard inherently impossible testimony such as testimony "in conflict with indisputable physical facts." 64 Corpus Juris 322; Budaj v. Connecticut Co., 108 Conn. 474, 143 A. 527; Oliver v. Union Transfer Co., 17 Tenn.App. 694, 71 S.W.2d 478; Hessler v. Bellamy, 128 Neb. 571, 259 N.W. 514; Behr v. Duling, 128 Neb. 860, 260 N.W. 281. Perhaps no better illustrations of the applicability of this principle can be found than in the three cases cited by appellee to this point.
One of the three cases is Pigeon v. Massachusetts Northeastern Street Railway Co., 230 Mass. 392, 119 N.E. 762, 764, decided by the Supreme Judicial Court of Massachusetts May 29, 1918. It was ruled there that as a matter of law Pigeon and those riding with him could not recover because of their contributory negligence. Pigeon's automobile was struck by a street car. The automobile just had started "from a stationary position on low speed" and was "moving slowly." It could have been stopped "within a distance of 3 feet." The court said that: "Notwithstanding the oral testimony to the effect that each looked for the car in the direction from which it came, the fact of the accident demonstrates that it was within the plain field of vision of each one for a sufficient period of time to have enabled Pigeon to stop his automobile if any of them had seen and spoken of the danger."
The facts in Mertens v. Lake Shore Yellow Cab & Transfer Co., 195 Wis. 646, 218 N.W. 85, decided by the Supreme Court of Wisconsin May 8, 1928, were these: Mertens, a pedestrian, started to cross a...
To continue reading
Request your trial
-
Caten v. Salt City Movers & Storage Co.
...verdict, conflicts in the evidence are to be resolved in favor of the appellant. Slocum v. Erie R. Co., 2 Cir., 47 F.2d 216; Kuper v. Betzer, 8 Cir., 115 F.2d 842. Accepting as true the evidence most favorable to the defendant, the jury could have found substantially as The defendant, whose......
-
Audiss v. Peter Kiewit Sons Co.
...favorable to the party against whom the verdict was directed. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Kuper v. Betzer, 8 Cir., 115 F. 2d 842; and also the holding of the trial court upon the status of the law of the state within which it acts must be accorded great w......
-
Breaux v. Flithers
...have done, it is not to be charged against him as contributory negligence for the primary fault would lie elsewhere. * * *' In Kuper v. Betzer (1940) 115 F.2d 842, the court, on page 846, '(8) Let the reader of these lines take out his watch and observe the second hand. One of these words c......
- Ohio Power Co. v. National Labor Relations Board, 8393.