Mandro v. Vibbert, No. 5784.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PARKER, , and SOPER and DOBIE, Circuit
• Citation: 170 F.2d 540
• Parties: MANDRO v. VIBBERT et al.
• Decision Date: 05 November 1948
• Docket Number: No. 5784.

170 F.2d 540 (1948)

MANDRO
v.
VIBBERT et al.

No. 5784.

United States Court of Appeals Fourth Circuit.

November 5, 1948.

170 F.2d 541

Robert Lewis Young, of Richmond, Va. (John G. May, Jr., of Richmond, Va., T. Stokeley Coleman, of Spotsylvania, Va., and Albert Rathblott, of New York City, on the brief), for appellant.

Aubrey R. Bowles, Jr., of Richmond, Va., (Bowles, Anderson & Boyd, of Richmond, Va., on the brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal from a verdict directed in favor of the defendants in an action wherein it was alleged that the defendants negligently caused the death of Michael Mandro, plaintiff's decedent. The facts, briefly, are these. On August 2, 1946, Mandro, driving a motorcycle, was following a car operated by Mrs. Anna Vibbert, one of the defendants and the wife of the other. Both vehicles were proceeding southward on U. S. Highway 1, near Fredericksburg, Virginia. For a distance of a mile or so and immediately prior to the accident, the motorcycle was following the Vibbert car at a distance apart of approximately 16 feet, both travelling at a speed of about 25 miles per hour. The Vibbert car, then, either slowed or stopped suddenly on the highway, whereupon Mandro's motorcycle crashed into the rear of the automobile and Mandro was fatally injured. There is conflict in the testimony on several material points, principally whether or not Mrs. Vibbert in any way signalled her intention to slow or stop as is required by statute, and whether or not Mandro was maintaining such a lookout as is required of all drivers upon the highways.

At the close of the plaintiff's case, the trial judge granted defendants' motion for a directed verdict, expressly refusing to find one way or the other on the issue of defendants' primary negligence, and basing his ruling solely on a finding that, as a matter of law, plaintiff's decedent, Mandro, was contributorily negligent. The question here presented, then, is well defined: Was this a proper case for a directed verdict on the issue of the following driver's contributory negligence?

At the outset it is well to recall the settled rule that in considering a motion for a directed verdict the evidence must be considered in its aspect most favorable

170 F.2d 542

to the party against whom the motion is made, with every fair and reasonable inference which the evidence justifies. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Myers v. American Well Works, 4 Cir., 114 F.2d 252, 253, certiorari denied 313 U.S. 563, 61 S.Ct. 842, 85 L.Ed. 1522; Harris v. United States, 4 Cir., 70 F.2d 889, 890

The evidence offered by the plaintiff to establish his case was admittedly scant, consisting principally of the testimony of a Miss Bullock, the only eyewitness to the accident other than the actual participants. She testified positively that the Vibbert car came to "a sudden stop" on the highway, and that Mrs. Vibbert gave no hand signal of her intention to stop. It was Miss Bullock's testimony that tended to establish, also, the distance between the car and the motorcycle as having been about 16 feet. Her testimony is somewhat weakened when it is considered that she was some 350 feet from the collision point, and was almost directly behind the vehicles involved. However, it cannot be said that her testimony was thus so discredited that...