Lyons v. United States, Civ. No. 940.
| Decision Date | 07 January 1958 |
| Docket Number | Civ. No. 940. |
| Parties | Frank J. LYONS v. UNITED STATES of America. |
| Court | U.S. District Court — District of Maine |
Gerald E. Rudman, Bangor, Me., for plaintiff.
Peter Mills, U. S. Atty., Portland, Me., Francis E. Day, Asst., U. S. Atty., for defendant.
This is an action against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b). Plaintiff, a resident of Bangor, Maine, sues here in the judicial district where he resides and the act complained of occurred, 28 U.S.C.A. § 1402(b). The case was tried to the court.
The following opinion contains the findings and conclusions required by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
1. The facts are as follows: On January 11, 1956, the plaintiff, Frank J. Lyons, was the owner and operator of a Pontiac station wagon proceeding in an easterly direction on U. S. Route No. 1 between Bangor and Machias, Maine. At the same time a United States Air Force one-and-one-half-ton International Truck, operated by one Harold Worcester, was proceeding on the same highway in a westerly direction. The Lyons station wagon and the Air Force truck collided in the town of Milbridge, Maine.
The truck was carrying a generator about nine feet long, five feet wide, and five feet high. The station wagon was loaded with merchandise (drug sundries). There were no passengers in either vehicle.
The highway on which the accident occurred is a tarred road about 19 feet 7 inches wide. It has a high crown. Its shoulders are approximately six feet wide on either side. In the vicinity of the accident the highway is flanked on both sides by ditches approximately two feet deep, and beyond the ditches it is edged by stumps and second growth. For over a mile in the general area of the accident the highway is a straight road and marked as a passing zone. A driver's vision from either direction is virtually unobstructed for about one mile measured from three tenths of a mile west of the scene of the accident to seven tenths of a mile east of it. There is a slight depression or "dip" in the road approximately two tenths of a mile east of the accident scene, but the total disabling effect on drivers' vision is so negligible as to be irrelevant to this decision.
The weather on the day of the accident was overcast and damp. The pavement was wet from rain, which had ceased to fall some time prior to the accident. There was neither snow nor ice on the surface or the shoulders of the highway, or on the immediately adjacent land. Intermittent gusts of wind, of moderate velocity, were blowing from a northeasterly direction. The shoulders of the highway were surfaced by gravel but were soft and muddy at the time of the accident.
The only evidence presented as to the events immediately preceding the accident was the testimony of Lyons himself, and since his testimony was not contradicted, it must be accepted by the Court. In substance, Lyons stated: that he first observed the truck when it was approximately one half mile distant from him; that both vehicles were traveling at approximately 40 to 45 miles per hour; that the truck was on its left hand side of the road headed directly toward him; that he immediately began blowing his horn in continuous short blasts, removed his foot from the accelerator and began slowing his vehicle; that he began gradual braking when he was about 300 feet away from the truck; that when only 50 or 60 feet separated the vehicles, he realized the truck was not going to return to its own side of the road; that he then turned his vehicle to his left; that at approximately the same moment the truck started turning to its right, and the left front of the truck and the right front of the station wagon collided.
Lyons further testified that when he first observed the truck, he "recognized a potential danger" at that time, but did not feel that it had yet become an emergency because "usually when you blow a horn at a driver on the wrong side of the road he removes himself, which I expected him to do"; that he recognized the fact it had become an emergency "at the moment I made up my mind to turn to the left"; that he had predetermined the condition of the highway and the ditch on his right side and "felt that turning to the right would result in a catastrophe" so that he immediately turned to the left; and that he did not attempt to stop his car at that time because .
The position of the vehicles after the accident is undisputed. They were roughly parallel one to another, the truck east of the station wagon. The right front wheels of both vehicles were on the highway's northerly edge, and their rear wheels were on or over the center line.
A skid mark traceable to the right rear wheel of the truck ran for a distance of 53 feet. It began at a point 3 feet south of the center line (on Lyons' side of the highway), continued for 24 feet 5 inches, then, crossing the center line, continued for 28 feet 7 inches, and ended 3 feet north of the center line (on the truck's side of the highway). In brief, the truck was clearly entirely on Lyons' side of the road at the time the skid began, was returning to its own side of the road, and at the time the collision occurred was in the approximate center of the highway.
There were no tire marks traceable to the Lyons vehicle.
2. It was necessary that Harold Worcester be shown to have been an employee of the Government acting within the scope of his employment, 28 U.S.C.A. § 1346(b), and not engaged in a discretionary function at the time of the accident. 28 U.S.C.A. § 2680(a), as interpreted in Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427. This was alleged in the complaint and admitted in the answer.
3. Section 83 of Chapter 22 of Revised Statutes of Maine, 1954, contains a "rule of the road" providing that "when persons traveling with a team are approaching to meet on a way, they shall seasonably turn to the right of the middle of the traveled part of it so that they can pass each other without interference". This rule, though stated in terms of "teams", is equally applicable to motor vehicles. American Mutual Liability Insurance Co. v. Witham, 1925, 124 Me. 240, 241, 127 A. 719; Bragdon v. Kellogg, 1919, 118 Me. 42, 44, 105 A. 433, 434, 6 A.L.R. 669. And the Maine court has frequently held that the statutory requirement that persons approaching to meet on a way shall "seasonably turn to the right of the middle of the traveled part of it" is mandatory; that the one who fails to obey this mandate is prima facie guilty of negligence and must sustain the burden of excusing his presence upon the wrong side of the road; and that the fact a party was on the left side of the road at the time of a collision is strong evidence of negligence, and unexplained and uncontrolled, is not only strong but conclusive evidence of negligence. Morin v. Carney, 1933, 132 Me. 25, 28, 165 A. 166; American Mutual Liability Insurance Co. v. Witham, supra; Bragdon v. Kellogg, supra; Neal v. Rendall, 1903, 98 Me. 69, 73, 56 A. 209, 63 L.R.A. 668.
In the instant case plaintiff and defendant's agent were "approaching to meet". The undisputed evidence indicates that at the time plaintiff first saw defendant's truck, it was entirely on its left-hand side of the road and that it had not wholly returned to its right-hand side of the road at the time of the collision. Defendant's agent was thus clearly in violation of the statutory rule of the road requiring him to "seasonably turn" to his right to avoid a collision and to yield plaintiff's side of the road to him without delay. This he did not do, and defendant offered no explanation whatsoever of its agent's failure to do so. The authorities hereinabove cited establish that this unexplained presence of defendant's truck on its left-hand side of the road must be conclusive evidence of defendant's negligence. More specifically, it constituted negligence in law.
4. Negligence of the defendant having been established, it becomes necessary to determine whether such negligence was a proximate or legal cause of the injuries produced. In this case defendant's agent was on the wrong side of the highway. He was there in violation of a law enacted for the protection and safety of travelers, including plaintiff, and to prevent collisions of the type which here occurred. But for the wrongful act of defendant's agent, there would have been no collision and no injury. The resulting collision and injuries were a consequence which could have been reasonably anticipated. The negligence of defendant's agent was, at the least, a contributory factor in bringing about the collision and injuries and is, therefore, actionable. See Neal v. Rendall, supra, 98 Me. 74, 56 A. 211.
5. There yet remains the question of contributory negligence. Defendant contends that even if its agent was negligent in his operation of the truck, his negligence was not the sole...
To continue reading
Request your trial