Luther v. Maple

• Decision Date: 06 February 1958
• Docket Number: No. 15774.,15774.
• Parties: Ed LUTHER, as Administrator of the Estate of Ruth Hafner, deceased, and Ed Luther, as Administrator of the Estate of L. G. Hafner, deceased, Appellants, v. Forrest E. MAPLE and Donna Maple, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F.2d 916 (1958)

Ed LUTHER, as Administrator of the Estate of Ruth Hafner, deceased, and Ed Luther, as Administrator of the Estate of L. G. Hafner, deceased, Appellants, v. Forrest E. MAPLE and Donna Maple, Appellees.

No. 15774.

United States Court of Appeals Eighth Circuit.

January 10, 1958.

Rehearing Denied February 6, 1958.

COPYRIGHT MATERIAL OMITTED

J. F. X. Conmy, Fargo, N. D. (Conmy & Donahue and Nilles, Oehlert & Nilles, Fargo, N. D., were with him on the brief), for appellants.

Wiley E. Mayne, Sioux City, Iowa (D. Carlton Shull and Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, Iowa, were with him on the brief), for appellees.

Before SANBORN, JOHNSEN and VOGEL, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiffs (appellees), against Ed Luther, as Administrator of the Estate of L. G. Hafner, deceased, in a personal injury and property damage action arising out of an automobile accident which occurred on August 18, 1955, in Pierce County, Nebraska, at about one o'clock in the afternoon, when the Dodge automobile of L. G. Hafner, of Ellendale, North Dakota, traveling south on U. S. Highway 81, and the Ford automobile being driven east on U. S. Highway 20 by Forrest E. Maple, of Antelope County, Nebraska, collided in the intersection of those highways. The accident resulted in the death of L. G. Hafner and his wife, Ruth Hafner, who were thrown from the car in which they were riding; the serious and permanent injury of Forrest E. Maple; some nonpermanent injuries to his wife, Donna Maple; and damage to both cars.

The Maples brought this action against Ed Luther, as administrator of the estate of each of the deceased Hafners, upon the claim that the accident was caused by the negligence of the driver of the Hafner car — stated in the complaint to be Ruth Hafner — in failing to stop in compliance with the stop sign on U. S. Highway 81, just north of the intersection with U. S. Highway 20, and in failing to yield the right of way to the Maple car, as required by Nebraska law. In his answer, Luther, who will be referred to as "the defendants", asserted the usual defenses of no actionable negligence on the part of the driver of the Hafner car and contributory negligence of Forrest E. Maple, the driver of the Maple car. Luther also set up a counterclaim on behalf of each estate, asserting that it was the negligence of Forrest E. Maple that caused the accident.

Jurisdiction was based on diversity of citizenship and amount in controversy. The controlling substantive law is that of Nebraska.¹

The jury returned a verdict for the plaintiffs against Ed Luther, as Administrator of the Estate of L. G. Hafner. It found for Ed Luther, as Administrator of the Estate of Ruth Hafner. It awarded Forrest E. Maple $70,000 damages, and Donna Maple $10,000.

In cases such as this, governed, as they are, by the law of the state in which the accident occurred, the decision of this Court is little more than a forecast or prophecy as to what the Supreme Court of the state would probably decide if the case was before it (Homolla v. Gluck, 8 Cir., 248 F.2d 731, 733), and can be of little interest to anyone except the parties and their counsel, who are entirely familiar with the issues and the evidence. All that this Court reasonably can be expected to do in such cases is to see that the result of the trial was not induced by a clear misconception or misapplication of the applicable state law. Russell v. Turner, 8 Cir., 148 F.2d 562, 564. See, also, Buder v. Becker, 8 Cir., 185 F.2d 311, 315, and Ortman v. Smith, 8 Cir., 198 F.2d 123, 127. Our opinions in such cases should, we think, be as short and concise as we are capable of making them.

The defendants assert that the trial court erred (1) in failing to inform counsel of its rulings on requests for instructions prior to the arguments to the jury, as required by Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A.; (2) in failing to direct a verdict for the defendants; (3) in granting a dismissal of the defendants' counterclaim, and so advising the jury prior to the court's charge; (4) in admitting in evidence certain exhibits, and permitting the projection on a screen before the jury of films showing Forrest E. Maple being treated for his injuries; (5) in failing to give a number of instructions requested by the defendants; and (6) in instructing the jury that Donna Maple could recover for loss of consortium due to her husband's injuries.

In the absence of any request by the defendants' counsel to be informed of the court's rulings on his requests for instructions prior to his argument to the jury, the mere failure of the court to conform with Rule 51 of the Federal Rules of Civil Procedure was not reversible error. Cf. Pennsylvania Railroad Co. v. Minds, 250 U.S. 368, 375, 39 S.Ct. 531, 63 L.Ed. 1039; Hall v. Aetna Life Ins. Co., 8 Cir., 85 F.2d 447, 450-451.

We cannot agree with the defendants' contention that the trial court should have granted their motion for a directed verdict. The evidence showed that U. S. Highway 20 was a main east and west arterial paved highway, upon which the Maple car was traveling east at a lawful rate of speed, and in the south lane, where it belonged; that the highway was protected by stop signs against cars moving on Highway 81; that the Hafner car, traveling south on Highway 81, moved into the intersection, crossed the north lane of Highway 20, and struck the side of the Maple car near its front end. The Maple car, approaching the intersection from the right of the Hafner car, must have been in plain sight of the driver of that car for an appreciable length of time before the Hafner car crossed the north lane of Highway 20 and reached the center line of that Highway. If the driver of the Hafner car had stopped at any time before encroaching upon the south lane of that Highway, the accident would not have occurred. The evidence does not show that the Hafner car did not stop before entering the intersection, but it does show that the Hafner car did not yield the right of way to the Maple car as required by Nebraska law. See § 39-728, Revised Statutes of Nebraska 1943, Reissue of 1952, requiring motor vehicles entering intersections to give the right of way to vehicles approaching from the right; and § 39-729, Revised Statutes of Nebraska 1943, Reissue of 1952, requiring that all vehicles crossing highways protected by stop signs "shall give the right-of-way to vehicles upon the highways to be driven upon or crossed." The failure of an automobile driver to yield the right of way as required by these statutes is evidence of negligence. Angstadt v. Coleman, 156 Neb. 850, 865, 58 N.W.2d 507, 515 and cases cited.

In Meyer v. Hartford Bros. Gravel Co., 144 Neb. 808, 811, 14 N.W.2d 660, 661, the court said:

"* * * A driver of a vehicle about to enter a highway protected by stop signs must stop as directed, look in both directions and permit all vehicles to pass which are at such a distance and traveling at such a speed that it would be obviously dangerous for him to proceed across the intersection. * * *"

See, also, Rogers v. Shepherd, 159 Neb. 292, 298, 66 N.W.2d 815, 819, and Ritter v. Hering, 135 Neb. 1, 5, 280 N.W. 231, 233.

Under the evidence in this case which shows how and why this accident happened, the presumption of due care so far as the driver of the Hafner car was concerned is out of the case. Eggeling v. Chicago, R. I. & P. Railway Co., 119 Neb. 229, 228 N.W. 361, 231 N.W. 152.

The question whether the trial court erred prejudicially in dismissing the defendants' counterclaims at the close of the evidence and in advising the jury of such dismissal presents difficulties. At the time the counterclaims were dismissed, the question as to which one of the Hafners was driving the Hafner car was an undetermined issue of fact. There was no evidence which would sustain a conclusion that Ruth Hafner was guilty of negligence or was responsible in any way for the collision if she was not driving the car. We think it cannot be held as a matter of law that Forrest Maple was not...