Leatherman v. Gateway Transportation Co.

• Decision Date: 27 May 1964
• Docket Number: No. 14151.,14151.
• Citation: 331 F.2d 241
• Parties: Luther L. LEATHERMAN, Plaintiff-Appellee, v. GATEWAY TRANSPORTATION CO., and J. C. Orville Wilcox, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

331 F.2d 241 (1964)

Luther L. LEATHERMAN, Plaintiff-Appellee, v. GATEWAY TRANSPORTATION CO., and J. C. Orville Wilcox, Defendants-Appellants.

No. 14151.

United States Court of Appeals Seventh Circuit.

April 20, 1964.

Rehearing Denied May 27, 1964.

William E. Borror, Leigh Hunt and William L. Wilks, Fort Wayne, Ind., for appellants.

James L. Larson, James W. Jackson, Fort Wayne, Ind., for appellee.

Before SCHNACKENBERG and KILEY, Circuit Judges, and MERCER, District Judge.

MERCER, District Judge.

Plaintiff filed this suit in the court below for damages for personal injuries alleged to have resulted from a collision involving two trucks. Following a non-jury trial, the court entered judgment against the defendants and assessed plaintiff's damages in the amount of $31,500.00. Defendants advance several arguments for reversal of that judgment upon this appeal.

The collision which gave rise to this suit occurred on January 24, 1959, in the town of Bremen, Indiana. Plaintiff was driving a tanker unit westerly on U. S. Highway 6. Defendant, Wilcox, was driving a semi-trailer unit which was owned by defendant, Gateway, easterly upon the same highway. As the two vehicles approached each other, the vehicle operated by Wilcox veered to the right, struck a bank of frozen snow and ice upon the berm of the highway, went out of control and jackknifed across the highway striking the vehicle operated by plaintiff.

The trial court found that the defendant, Wilcox, was negligent in respects hereinafter delineated and that his negligence was the proximate cause of the collision and plaintiff's injuries.

Defendants do not contest the finding that Wilcox was negligent. The first major contention is that the evidence shows that independent agencies over which defendants had no control intervened which were the proximate cause of the collision and any damages which plaintiff may have sustained therefrom.

Related to that contention, the trial court found that the highway upon which the collision occurred was snow-covered and hazardous; that shortly prior to the collision Wilcox was operating his vehicle within the limits of the town of Bremen at a speed between 30 and 40 miles per hour; and that Wilcox operated his vehicle "at a speed in excess of that which a reasonably prudent man would operate a vehicle in view of the hazardous conditions and circumstances then existing and well known to the defendant Wilcox." The collision occurred in front of a shopping center. As the vehicle driven by Wilcox approached the shopping center, a pick-up truck pulled from the parking lot at the center from Wilcox's left and entered his lane of traffic approximately 50 feet in front of the tractor which he was driving. The court found that the pick-up truck entered the highway at an angle which required no sharp turn and that it was travelling at approximately the same speed as was Wilcox's vehicle. Thereafter, Wilcox permitted his vehicle to close the distance between the rear of the pick-up truck and the front of his tractor to approximately 25 feet. The pick-up truck either stopped or greatly reduced its speed. Because of the close proximity of his tractor to the rear of the pick-up truck, Wilcox attempted to turn his unit to the right and enter a garage parking area. When he turned onto the berm of the highway he struck a bank of frozen snow and ice which was approximately 18 inches higher than the surface of the highway and lost control of his vehicle. The trailer of the Wilcox rig then jackknifed across the highway and collided with plaintiff's truck.¹

Defendants argue that the advent of the pick-up truck and the possible negligence of the driver of the pick-up truck, operating in conjunction with the ridge of frozen snow and ice, were intervening agencies which "must be regarded as the proximate cause of any injury and any original negligence must be considered as only the remote cause."

Under Indiana law, if an independent responsible agency intervenes following a negligent act, in a way which could not reasonably have been foreseen, resulting in the injury of another, the negligent actor may be relieved from legal responsibility for the injury. E. g., City of Indianapolis v. Willis, 208 Ind. 607, 194 N.E. 343; Kiste v. Red Cab, Inc., 122 Ind.App. 587, 106 N.E.2d 395; Engle v. Director General of Railroads, 78 Ind.App. 547, 133 N.E. 138. That principle is correctly set forth in defendants' brief upon this point, but, unfortunately for their cause, it does not lead to the result contended for.

City of Indianapolis v. Willis, 208 Ind. 607, 194 N.E. 343, and Engle v. Director General of Railroads, 78 Ind.App. 547, 133 N.E. 138, reflect the correct embodiment and application of the principle.

Engle involved a passenger upon a train who had been killed under Rube Goldbergian circumstances. The train struck an automobile and threw the automobile against a switch, with the result that the train was switched onto a side track where it struck other railroad cars standing on the side track causing the death of the passenger on the train. The court, quoting Cleveland, C., C. & St. L. R. Co. v. Clark, 51 Ind.App. 392, 97 N.E. 822, stated the intervening agency doctrine in the following language:

"`Where there is an intervening responsible agency, which directly produces the injury, as in this case, the question as to whether the original negligence is to be regarded as the proximate cause of the injury, or only as a condition, or remote cause, is to be determined by ascertaining whether the agency which intervened was of such a character, and the circumstances under which it occurred were such, that it might have been reasonably expected that such agency or a similar one would intervene in such a way as to be likely to produce an injury similar to the one actually caused. If, under the circumstances, the intervention of such an agency in the manner stated might reasonably have been expected in the usual course of events, and according to common experience, then the chain of causation, extending from the original wrongful act to the injury, is not broken by the independent, intervening agency, and the original wrongful act will be treated as the proximate cause. * * * On the other hand, if the agency intervening was one over which the original tort-feasor had no control, and which was not put in motion by the original wrongful act; and if the character of the intervening agent, and the manner of the intervention, were such as, under the circumstances, could not reasonably have been expected to occur in the ordinary course of nature and according to common experience — then such independent agency so intervening will be treated as the sole proximate cause, and the original wrongful act will be treated as only a condition.\'" 133 N.E. at 139.

The intervening agency doctrine was invoked by the City in City of Indianapolis v. Willis, 208 Ind. 607, 194 N.E. 343, a wrongful death action. The plaintiff's decedent was killed when a cab in which decedent was riding ran into a canal at the intersection of a street with the canal. No guard rails, signals or other warning devices were maintained by the City at the street-canal intersection. The court rejected the City's argument that the negligence of the cab driver was an intervening agency relieving the City of liability saying, in part:

"`The fact that some other cause operates with the negligence of a defendant does not relieve him from liability. * * * The City\'s negligence contributed to the injury and cannot be said to be a remote cause for the reason that whatever it did contribute it contributed at the time and place of the injury. Another event occurred to produce appellant\'s injury, but this event could not have produced the injury but for appellee\'s negligence. * * * Clearly, there were

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