Lang v. Rogney

• Decision Date: 15 January 1953
• Docket Number: No. 14651.,14651.
• Citation: 201 F.2d 88
• Parties: LANG v. ROGNEY.
• Court: U.S. Court of Appeals — Eighth Circuit

201 F.2d 88 (1953)

LANG v. ROGNEY.

No. 14651.

United States Court of Appeals Eighth Circuit.

January 15, 1953.

Linus J. Hammond, St. Paul, Minn. (R. E. Cummins, St. Paul, Minn., was with him on the brief, Cummins, Cummins, Hammond & Ames, St. Paul, Minn., of counsel), for appellant.

A. Laurence Davis, St. Paul, Minn. (Morgan, Headley, Raudenbush & Morgan, St. Paul, Minn., of counsel), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

COLLET, Circuit Judge.

This is an appeal from a judgment for personal injuries. Plaintiff, a resident and citizen of Wisconsin, was struck by defendant's automobile and injured as he was crossing U. S. Highway No. 12 in front of his home, approximately one mile east of Black River Falls, Wisconsin. Defendant is a resident and citizen of Minnesota. The present action was brought in the United States District Court in Minnesota and tried before a jury. Jurisdiction results from diversity of citizenship and the amount involved. The substantive law of Wisconsin applies. The parties will be referred to here as they were designated in the trial court.

Defendant's brief does not comply with the rules of this court, particularly Rule 11(b) relating to points and authorities and the argument. This rule has been in effect in substantially its present form for many years. We have repeatedly called our rules to counsel's attention in other cases and have occasionally dismissed appeals on motion when a violation was flagrant. Although plaintiff's counsel directs our attention to the imperfections of defendant's brief, there was no motion to dismiss. The brief, other than its form and arrangement, is a good brief. Our concern that controversies reaching the courts be determined on their merits in the interest of substantial justice prompts us to subordinate the additional labor entailed upon us, because of the failure of a brief to properly set forth the points and authorities, and the argument under each, to the merits of a case. But the line of demarcation between a brief prepared in conformity with our rules and one which in form and arrangement violates our rules yet still may be adequate is sufficiently indefinable to commend compliance with the rules and make their violation at least hazardous.

Under the law of Wisconsin a plaintiff may recover when guilty of contributory negligence, if the defendant's negligence has been established and plaintiff's negligence is not as great as defendant's. The Wisconsin statute is:

"Sec. 331.045. Comparative negligence; when bars recovery. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished by the jury in the proportion to the amount of negligence attributable to the person recovering."

Under the topic entitled "Evidence Insufficient to Sustain Judgment", in defendant's brief, he tacitly assumes that the evidence was sufficient to warrant a finding of negligence on his part and argues the insufficiency of the evidence on the ground that the proven facts show plaintiff guilty of contributory negligence as a matter of law in that plaintiff failed to prove defendant was negligent to a greater extent than plaintiff. We shall consider the question of the sufficiency of the evidence as that question is presented without separately considering the evidence of defendant's negligence, since the latter was in our opinion sufficiently established and its extent must be weighed in determining whether plaintiff's comparative negligence prevents a recovery under the statute above quoted. The evidence must be viewed in the light most favorable to the jury's verdict.

The accident occurred at about 7:30 p. m., Sunday, September 25, 1949. The pavement was dry. The sun had set at 5:56. The time of civil twilight, i. e., the interval of time between sunset and the instant when the center of the sun is 6 degrees below the horizon, was 29 minutes. It was practically dark, but, as plaintiff expresses it, "a little twilight yet." The highway was a much-traveled United States concrete highway. Plaintiff's home was located approximately 20 feet south of the right-of-way. The right-of-way consisted of a ditch and shoulder in front of plaintiff's house, then a gravel shoulder and a gravel driveway leading to a filling station-garage, store and cafe on the north side of the pavement. The highway in front of plaintiff's home was straight and level, running substantially due east and west. About 800 to 900 feet east of his home it curved to the southeast.¹ Approximately 600 feet west it curved to the northwest. There were no obstructions to sight from plaintiff's front gate at the south edge of the right-of-way to the curve in each direction. The lights in plaintiff's home had been on before he left. There were three or four lights on poles along the south side of the highway between the curves. On the north side of the highway slightly to the west of plaintiff's home but almost directly across the highway from it was a store, cafe and filling station-garage. These buildings were set back from the highway with the filling station pumps between the building and the highway. Lights were on in and around these buildings. Plaintiff was 75 years of age at the time of the accident and was a night watchman at a factory. His work began at 8:00 p. m. Plaintiff testified that at the usual time, about 7:30 p. m., he left his home to cross the highway to the cafe to call a taxi to take him to work. He walked down the path and through the front gate. As he approached the concrete pavement there was no obstruction to his view to the east or west and he could see to both curves. When he got "pretty close" to the concrete he stopped and looked to the east. He did not see any vehicle coming from the east. He looked to the west and saw some cars coming around the curve from the west. He looked back to the east, saw nothing coming from that direction, and walked across the pavement. There was no cross-walk at this point. As he was walking across he could have seen to the curves in both directions. According to his testimony, "I was just stepping — I was just stepped off onto the gravel" on the north side of the pavement when he was struck by defendant's car, "after I got across". He did not see the car or its lights. He heard no horn sounded. Nor did he hear the sound of brakes being applied on defendant's car. His eyesight was good.

Several eyewitnesses to the accident testified in plaintiff's behalf. Mr. Paul Cooper, a county traffic officer, was in the first car which plaintiff saw coming from the west. Mr. Cooper stopped at a side street approximately 200 feet west of the cafe and the point of the accident to let out two passengers. While he was stopped there he looked up and saw plaintiff crossing the highway. When Mr. Cooper first saw him, plaintiff was practically in the center of the pavement. At the same time Cooper saw defendant's car with the lights on coming from the east. Practically at the same instant Cooper looked up and saw plaintiff in the center of the highway he heard the screech of the tires on defendant's car. Cooper testified that — "It seemed to me he (plaintiff) kind of fairly gave a jump to get across ahead of the car." He saw the car strike plaintiff. It came straight ahead with the tires skidding on the pavement, veering slightly to the right as it stopped. Cooper says that plaintiff was "right on the cement" when he was struck and that it seemed to him the car "just kind of knocked him over", plaintiff falling to the gravel on the north shoulder five or six feet from the edge of the pavement. Cooper measured the skid marks. They were 50 feet in length and at the last angled a little to the north. Cooper testified it was quite dark. The headlights on his car and other cars, including defendant's, were on. Cooper could not estimate the speed of defendant's car coming toward him before it struck plaintiff. He says it was practically stopped when it struck plaintiff, and that a small dent on the right front fender indicated where the car struck plaintiff. The headlight was not broken.

The defendant was called as a witness by plaintiff. He dimmed his lights for Cooper's car, and did not see plaintiff until he suddenly appeared in front of the left front wheel of his car, whereupon he immediately applied his brakes but was unable to avoid striking him. He said that his car was stopped approximately 15 feet beyond the point plaintiff fell, with the right front wheel a few inches off the concrete and the other wheels on the pavement. That when plaintiff was struck he was thrown "maybe 20 feet all together". That there was not time to sound his horn.

Mr. Robert Elmore, a student, 15 years old at the time of the accident, testified that he saw the accident. That he saw defendant's car approaching with the headlights on, at a speed of about 40 miles per hour, 275 to 300 feet east of plaintiff when plaintiff was at about the center of the pavement, looking straight ahead (north). That when plaintiff was five or six feet from the north side of the pavement the tires on defendant's car started screeching on the pavement. That at that time plaintiff appeared to look around at defendant's car. He estimated the distance between defendant's car and plaintiff at that time at 50 feet. That plaintiff was on the concrete, approximately a foot or a foot and a half from the north edge of the concrete when he was struck. That defendant's car was traveling approximately 10 miles per hour at the time it struck plaintiff. That when plaintiff was struck he was thrown approximately 15 feet and one of his rubbers knocked off and his teeth were knocked out of his mouth.

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