Lachman v. Pennsylvania Greyhound Lines

• Decision Date: 12 March 1947
• Docket Number: No. 5546.,5546.
• Citation: 160 F.2d 496
• Parties: LACHMAN v. PENNSYLVANIA GREYHOUND LINES, Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

160 F.2d 496 (1947)

LACHMAN v. PENNSYLVANIA GREYHOUND LINES, Inc.

No. 5546.

Circuit Court of Appeals, Fourth Circuit.

March 12, 1947.

Louis B. Fine, of Norfolk, Va., for appellant.

Leon T. Seawell, of Norfolk, Va., for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is a civil action originally instituted in the Court of Law and Chancery of the City of Norfolk, Virginia, by Mary Lachman, plaintiff and appellant, against Pennsylvania Greyhound Lines, Incorporated, defendant and appellee (hereinafter referred to as Greyhound), for personal injuries sustained by plaintiff while she was a passenger on a Greyhound bus en route from New York to Norfolk. Greyhound had the cause removed to the United States District Court for the Eastern District of Virginia and from a judgment in that court adverse to her, Lachman has appealed.

The questions before us are the applicability of the doctrines of sudden emergency and res ipsa loquitur. The lower court gave instructions that denied to Lachman any benefit that could have been derived from the doctrine of res ipsa loquitur and made available to Greyhound a possible defense based on a finding of sudden emergency Error is alleged by Lachman as to both instructions.

The accident occurred on October 14, 1944, at four-thirty A.M., on U. S. Route No. 13, in the State of Maryland, fourteen miles South of Salisbury. It appears that there is a curve at that point on the road which forms a flat and gradual turn to the left, or East, when a vehicle is proceeding, as was the bus here, to the South. This section of the highway is 22 feet wide, with shoulders extending two feet on each side. That part of the road leading to the curve is of concrete construction, whereas the curve itself, or parts of it, are made with macadam. The road was wet, as it had been raining during the night in question, and visibility was limited because of the mist.

The testimony concerning many of the important facts surrounding the accident was contradictory. Lachman related that the bus was going "very fast * * * around sixty miles an hour." Opposed to this was the statement of the Greyhound driver that he was going "thirty and thirty-five miles per hour." The driver emphatically denied statements attributed to him by Lachman that he had a limited time in which to catch the Cape Charles ferry, and that he had requested a passenger sitting behind him to keep talking so that he wouldn't go to sleep. There were conflicting expressions as to the care with which the vehicle was being driven and the amount of rain and mist prior to, and at the moment of, the accident. Lachman testified that she saw the bus headed for a certain crash into a telephone pole, that she screamed and then knew nothing more until she regained consciousness in a Salisbury hospital.

The Greyhound driver testified (and there was no substantial conflict as to this) that he approached the curve aware of a "curve or an incline or something" as "I could vision it with my lights." He stated that his lights and windshield wiper were working properly and he was able to see for more than 200 feet ahead when the bus skidded slightly. The driver attributed the skid to the different coefficient of friction encountered by the bus in traveling from the "cement" (concrete) to the "tarred" (macadam) surface of the highway. Realizing that he was in skid, he took his foot off the accelerator and, without applying the brake, attempted to guide the bus back onto the road. The skid continued and when a crash into a telephone pole appeared inevitable, he managed to guide the bus in the general direction of the skid to an opening between the pole and a tree which took the bus into a plowed field. The bus slid sharply in the mud, turned around and over on its side, coming to rest in the field a few feet from the road. As the bus went over, Lachman was injured.

The court properly instructed the jury as to the high degree of care which the law demands of a common carrier, although this instruction was preceded by an instruction that "* * * you cannot infer negligence * * * from the mere happening of an accident, or from the mere fact that the bus in which the plaintiff was riding skidded upon the highway." To this Lachman duly excepted.

The Court went on to instruct the jury that:

"You are told further that if you believe from the evidence that the driver of the bus, at the time of the accident or immediately preceding it, was placed in a position of sudden emergency requiring immediate action on his part to try to avoid the accident, and that such emergency was not caused by the negligence of the driver, then the same amount of care was not required of the driver under such circumstances of sudden emergency as is required otherwise, because the law recognizes that under such circumstances (that is, circumstances of a sudden emergency) the minds and muscles of men do not act instantaneously, and the law makes allowance for errors of judgment. What was required of the driver at the time was that he act with the highest degree of care practicable, which I have just mentioned, under all the circumstances existing, but bearing in mind that if he was confronted with a sudden emergency, you must recognize that definition of the care with which he was chargeable by the principle that the law recognizes that in such emergency some allowance for errors of judgment must be made."

Lachman also excepted to this instruction, both as to applicability and, if applicable, to the correctness of the law expressed therein. These two phases of the doctrine of sudden emergency are treated as one by counsel and will be so treated here.

We have, therefore, only two questions before us: (1) Whether the facts stated constitute a proper case for an instruction encompassing the doctrine of res ipsa loquitur; and (2) Whether the doctrine of sudden emergency is applicable and, if so, whether this doctrine was correctly stated. Greyhound contends that since skidding is not negligence, per se, the doctrine of res ipsa loquitur could not apply in any event. Although in this respect the questions may not be of equal dignity, we will take them up in the order presented.

Question has arisen as to whether the applicability of the doctrine of res ipsa loquitur is to be determined by the law as laid down in the federal courts, by the law of Virginia where the case was tried in the federal court, or by the law of Maryland where the cause of action arose. Ordinarily, of course, questions of procedure in the federal courts are governed by the federal rules and by federal decisions interpreting and supplementing them, and questions of substantive law by the rules prevailing in the courts of the several states under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 A.L.R. 1188, 114 A.L.R. 1487. The line between substance and procedure is not so clearly marked as to be free from doubt in all cases, and the decisions have been influenced by the desire to effectuate the spirit of the doctrine of Erie R. Co. v. Tompkins so as to secure uniformity in the results to be obtained in the state courts and in the federal courts in diversity cases in each state. This is especially desirable when the remedial law of the state is so closely associated and incorporated with its substantive law as to be necessary in order to maintain and validate the latter. Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Thus it has been held that the federal courts must follow the law of the state as to the burden of proof in certain classes of cases. Cities Service Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L. Ed. 196; Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719; and as to conflict of laws Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L. Ed. 1481, 134 A.L.R. 1462; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; and as to state statutes of limitation in equity cases, Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. See also dissenting opinion of Mr. Justice Reed in Angel v. Bullington, 67 S.Ct. 657.

In Central Vermont R. Co. v. White, 238 U.S. 507, 511, 512, 35 S.Ct. 865, 867, 59 L. Ed. 1433, Ann.Cas.1916B, 252, which dealt with the question as to whether or not burden of proof as to contributory negligence was a matter governed by the procedure of the state of the forum, the Supreme Court said:

"So, too, as to the burden of proof. As long as the question involves a mere matter of procedure as to the time when and the order in which evidence should be submitted the state court can, in those and similar instances, follow their own practice even in the trial of suits arising under the Federal law.

"But it is a misnomer to say that the question as to the burden of proof as to contributory negligence is a mere matter of state procedure. For, in Vermont, and in a few other states, proof of plaintiff's freedom from fault is a part of the very substance of his case. He must not only satisfy the jury (1) that he was injured by the negligence of the defendant, but he must go further, and, as a condition of right to recover, must also show (2) that he was not guilty of contributory negligence. In those states the plaintiff is as much under the necessity of proving one of these facts as the other; and as to neither can it be said that the burden is imposed by a rule of procedure, since it arises out of the general obligation imposed upon...