Mann v. Bowman Transportation, Inc.

• Citation: 300 F.2d 505
• Decision Date: 23 February 1962
• Docket Number: No. 8421.,8421.
• Parties: Olin MANN, as Administrator of the Estate of Dale Galloway, deceased, Appellee. v. BOWMAN TRANSPORTATION, INC., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

300 F.2d 505 (1962)

Olin MANN, as Administrator of the Estate of Dale Galloway, deceased, Appellee. v. BOWMAN TRANSPORTATION, INC., Appellant.

No. 8421.

United States Court of Appeals Fourth Circuit.

Argued October 25, 1961.

Decided February 23, 1962.

O. G. Calhoun, Jr., Greenville, S. C. (W. Francis Marion, Greenville, S. C., on brief), for appellant.

James R. Mann, Greenville, S. C., for appellee.

Before SOPER, BOREMAN and BELL, Circuit Judges.

BOREMAN, Circuit Judge.

This is an action to recover damages for wrongful death under South Carolina's Lord Campbell's Act.¹ Plaintiff is the administrator of the estate of Dale Galloway, a twenty-year old textile worker who was killed in a collision between an automobile in which he was a passenger and a tractor-trailer vehicle owned by the defendant, Bowman Transportation, Inc., and driven by its employee, Hoyt Wehunt. The action is brought on behalf of the estate for the benefit of Dale's divorced parents, and it is charged that the fatal accident was caused by the negligence of the driver of defendant's truck. Defendant denied negligence and charged that the deceased's contributory negligence would bar the right of the estate to recover even if the truck driver were negligent. The issue of contributory negligence was withdrawn from the jury's consideration by the District Judge, and the jury returned a verdict in favor of plaintiff for $55,000, actual damages (no punitive damages). The District Court denied Bowman's motion for a new trial or, in the alternative, for a remittitur of one-half the amount of the jury award and Bowman appeals. We find no error.

Both the deceased and Mrs. Cecil Ruth Chapman, the driver of the automobile in which Dale was riding when killed, were textile workers and were enjoying a week-long Fourth of July holiday in 1960. On Tuesday night, July 5, 1960, about ten thirty, Mrs. Chapman, accompanied by two daughters, encountered Dale at Liberty, South Carolina, where they had driven to see a friend; at that time Mrs. Chapman and her family were living in nearby Easley, South Carolina. (Unless otherwise indicated, all communities hereinafter referred to are in South Carolina.) After talking for a few minutes the four were joined by one Norman Harrison, a friend of Dale and the Chapman family. At the daughters' suggestion, they all went to a restaurant or roadhouse between Clemson and Courtney, a distance of not more than twenty miles, to hear a band. Mrs. Chapman drove the car. While there some of the group danced for a short time, and Dale, Norman and one of Mrs. Chapman's daughters drank at least one bottle of beer each. Mrs. Chapman and her other daughter had soft drinks. About two o'clock on the morning of July 6, 1960, the five members of the party left the "night spot" to drive to a diner a few miles away to get something to eat. They found the diner closed and at the request of Norman Harrison, they then proceeded to a residence (of an unidentified man) near Pendleton. Finding a light on in the kitchen, Norman and Dale entered the house, stayed there a few minutes and returned to the car. The record is silent as to their reason for visiting the house. From that point Mrs. Chapman and her party returned to Liberty where they found a drive-in restaurant open and stopped to eat. The party remained at the drive-in about two hours (during a heavy cloudburst of rain), but while there one of the girls in the group became nauseated and was later given some liquor by a friend "to settle her stomach." There was testimony to the effect that the party became loud and boisterous and they were asked to leave. About five o'clock in the morning they started for home. With Mrs. Chapman continuing to drive they proceeded about two miles to a point near Norris on United States Highway 123 at the intersection of the county road which led to their left and to Norman's home. Dawn was then breaking. As Mrs. Chapman was preparing to make a left turn off the highway, defendant's truck crashed into the rear of her car fatally injuring Dale, who was riding in the back seat.

At the time of the collision Mrs. Chapman was waiting in her right lane of the two-lane highway to permit a car which she perceived approaching from the opposite direction to clear the traffic lane to her left so that she could safely make her left turn. Her car was stopped on an upgrade. The truck hit Mrs. Chapman's car at the moment the oncoming car owned and operated by W. D. Gibson was directly opposite and passing the Chapman vehicle. Mr. Gibson and his wife, who was riding beside him, were thus witnesses to the accident; both testified at the trial.

While Mrs. Chapman and her party were driving around on the night and morning of July 5-6, defendant's driver, Hoyt Wehunt, and a relief driver had been en route from Richmond, Virginia, to Cummings, Georgia. Wehunt had slept for several hours in the truck cab's sleeping compartment before taking over the driving at approximately 3:30 on the morning of the accident. At a point about two miles west of Norris on Highway 123, he saw, over the crest of a hill and ahead, the headlights of an oncoming car which he later learned was occupied by Mr. and Mrs. Gibson. Wehunt dimmed the truck's headlights, and after he had proceeded up the grade about 300 feet, the truck's lights illuminated Mrs. Chapman's car stopped on the highway which, according to Wehunt's own testimony, was only 28 to 32 feet in front of the truck. Wehunt immediately applied his brakes but nevertheless struck the rear of the stopped vehicle; the truck had been traveling at a speed of about 40 miles an hour before the brakes were applied. The Gibson car stopped a short distance after passing the point of the collision and Mr. and Mrs. Gibson returned to the scene. They, with Wehunt, assisted in the removal of the injured occupants from the car amid what was described as the strong odor of alcohol which was still present in and about the Chapman car nearly an hour after the accident, according to a highway patrolman who investigated.

The jury's verdict of $55,000 in favor of the administrator plaintiff, for the benefit of Edna B. Galloway, decedent's mother, and Claude T. Galloway, decedent's father, was returned without apportionment of the award between the two beneficiaries. Dale lived with his mother and contributed to her support; he had neither wife nor children. His father lived and worked in Chicago, Illinois, taking tickets at a theater. Dale contributed nothing to his father's support. The father and mother were divorced in 1944, when Dale was four years old, and there is no direct evidence that Mr. Galloway and his son saw or wrote to one another at any time after the divorce though it does appear that Mr. Galloway lived in South Carolina for a time around 1950 and had visited his family at Christmas time, presumably in 1959.

Four questions are presented on this appeal. Defendant first contends that the District Judge erred in ruling as a matter of law that there was no contributory negligence by Dale Galloway and in removing that issue from jury consideration. It is argued that the record shows both direct and circumstantial evidence from which the jury could have inferred that Dale did not exercise reasonable care for his own safety and that his negligence was at least a partial cause of his fatal injury. Defendant points out that the testimony of Wehunt, Gibson and the patrol officer with respect to the strong odor of alcohol in the Chapman car after the accident indicates that some members of the party had consumed more alcoholic beverages than mentioned in Mrs. Chapman's testimony. She testified that to her knowledge Norman, Dale and one of her daughters each drank a bottle of beer at the first stop during the evening's adventures but acknowledged that each may have consumed more at that stop; it was shown, however, that the drive-in where the party later stopped did not sell beer. It is suggested that Dale had consumed alcohol to such an extent that he did not exercise proper care for his own safety and that Mrs. Chapman was driving under the influence of intoxicants, to Dale's knowledge. It is also suggested that the jury could have found from the testimony that Mrs. Chapman was weary because of the fact that she had lost sleep and rest on the night of July 4 while ministering to her badly sunburned daughters and had driven around without sleep during the night of the accident so that she was unable to safely operate a motor vehicle. The contention is that Dale knew, or should have known, that Mrs. Chapman was in no condition to drive because of fatigue. Defendant also argues that Dale could have been found negligent in failing to warn Mrs. Chapman to move her car off the highway or to drive forward when he saw the reflections from the lights of the truck approaching from the rear and knew, or should have known, that the rear signal lights on Mrs. Chapman's car were not operating. Other suggestions of a highly speculative nature are made by the defendant, but we do not consider it necessary to discuss them.

A careful reading of the record in this case has convinced us that the District Judge did not err in withdrawing from the jury the issue of contributory negligence. Defendant had the burden to affirmatively show contributory negligence on the part of the deceased and this the defendant failed to do. At the trial and in the brief on appeal, defendant has repeatedly insinuated that both Mrs. Chapman and Dale were under the influence of intoxicants. However, we find no evidence in the record that Mrs. Chapman consumed any intoxicants whatever prior to the accident; in fact, there is ample direct evidence that she did not. The only evidence as to Dale's consumption of any alcoholic beverage was Mrs. Chapman's testimony that he drank one bottle of beer.

The record fails to support defendant's contention that Mrs. Chapman was so fatigued at the...