Marshall v. Nugent

• Decision Date: 13 May 1955
• Docket Number: No. 4866-4868.,4866-4868.
• Citation: 222 F.2d 604
• Parties: Frank E. MARSHALL, Plaintiff-Appellant, v. Robert H. NUGENT, Defendant-Appellee. SOCONY-VACUUM OIL COMPANY, Incorporated, Defendant-Appellant, v. Frank E. MARSHALL, Plaintiff-Appellee. SOCONY-VACUUM OIL COMPANY, Incorporated, Defendant-Appellant, v. Robert H. NUGENT, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

222 F.2d 604 (1955)

Frank E. MARSHALL, Plaintiff-Appellant, v. Robert H. NUGENT, Defendant-Appellee.

SOCONY-VACUUM OIL COMPANY, Incorporated, Defendant-Appellant, v. Frank E. MARSHALL, Plaintiff-Appellee.

SOCONY-VACUUM OIL COMPANY, Incorporated, Defendant-Appellant, v. Robert H. NUGENT, Defendant-Appellee.

Nos. 4866-4868.

United States Court of Appeals First Circuit.

Argued January 4, 1955.

Decided May 13, 1955.

Rehearing Denied May 31, 1955.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Donald R. Bryant, Dover, with whom Burns, Calderwood & Bryant, Dover, was on the brief, for Frank E. Marshall.

Arthur H. Nighswander, Laconia, and Walter D. Hinkley, Lancaster, with whom Hinkley & Hinkley, Lancaster, and Nighswander, Lord & Bownes, Laconia, were on the brief, for Robert H. Nugent.

Robert B. Hamblett, Nashua, with whom Charles K. Hamblett and Hamblett, Moran & Hamblett, Nashua, were on the brief, for Socony-Vacuum Oil Co., Inc.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

Rehearing Denied in No. 4867 May 31, 1955.

MAGRUDER, Chief Judge.

These three appeals relate to the same motor vehicle accident, in which Frank E. Marshall received personal injuries.

On the morning of December 17, 1951, a Chevrolet car owned and operated by Walter G. Harriman was proceeding on a public highway from Colebrook, New Hampshire, in a southerly direction bound for North Stratford, New Hampshire. Marshall was riding as a passenger in the front seat of the Chevrolet. Harriman was a son-in-law of Marshall and also his employee in an insurance business conducted under the name of the Frank E. Marshall Agency. They were bound for North Stratford to enable Marshall to keep a business appointment.

As Harriman was driving his car on the right-hand side, or westerly lane of the highway, at 30 to 35 miles per hour, he approached a curve in the road. At this point the highway ran uphill and curved rather sharply to Harriman's right. The curve was heavily banked, the east side being higher than the west side. On the day in question the road was covered with hard-packed snow and ice and was quite slippery. Proceeding in the opposite direction, i. e., northerly and headed for Colebrook, was a heavy oil truck owned by Socony-Vacuum Oil Co., Inc., and driven by its servant, Warren K. Prince, undoubtedly then in the scope of his employment. Upon ample testimony the jury were warranted in finding that after the oil truck loomed over the crest of the hill it "cut the corner" by swinging over to the westerly side of the highway (to Prince's left) and proceeded down the banked curve in that manner. In this situation the truck and the Chevrolet, then approximately 300 ft. or more apart, were headed for a collision. There was credible evidence that Harriman let up on his accelerator and blew his horn, but as the truck did not get back promptly to its side of the road Harriman turned to the right into the snowbank at the west side of the road to slow down; the Chevrolet went into a skid for about 50 ft. and came to a stop completely off the highway on the westerly side and at right angles with the road.

Prince stopped his oil truck on the easterly, or to him the right-hand, side of the highway, about opposite the stalled Chevrolet. Harriman and Marshall got out of the car. Prince inquired if they were "okay" — which they were at that time — and offered to yank the Chevrolet back into the highway if Harriman had a chain.

At this time the oil truck, blocking as it was the eastern lane of the highway, was stopped in a dangerous place. The danger was not with reference to southbound traffic, for the Chevrolet and the stopped truck were visible to such traffic for a straightaway distance of 1200 to 1500 ft. Rather, the danger was with reference to northbound traffic. Drivers in cars proceeding in a northerly direction could not see the truck standing in the "blind spot" below until they arrived almost at the crest of the hill, when they would realize that there was not room to pass the truck on the right-hand or easterly side, and the risk was obvious that in the existing weather conditions they might go into a skid while attempting to swing over to the left on the banked curve in order to pass between the Chevrolet and the truck. Also there would be danger from northbound traffic during the blocking of the highway by the anticipated operation of towing the Chevrolet back into the highway.

Prince, who was very familiar with this particular portion of the highway, recognized the danger inherent in the situation, for he remarked to Messrs. Harriman and Marshall that his truck was stopped in a rather dangerous position and that someone ought to go up the grade to warn any approaching northbound traffic.

In response to this obviously reasonable suggestion from Prince, Marshall undertook to go up the hill to warn any cars that might be approaching the crest in a northerly direction. Harriman continued the operation of getting out his chain and affixing it to the spring shackle of his car. Meanwhile, Prince let the truck stand still on the east side of the highway, when it might have been safer to have pulled over in a matter of moments to the other side of the highway to await the towing operation. Having proceeded southerly for perhaps 75 or 80 ft., walking on his right-hand side of the highway, about 4 ft. from the snowbank on the westerly side, Marshall perceived coming over the crest of the hill a car driven by Robert H. Nugent. This car would have presented no danger to Marshall if it could have proceeded on its right-hand or easterly lane, but this was impossible because the oil truck was blocking this lane. Marshall waved his arms in warning. Nugent turned his car toward the left. It soon went into a skid, crossing to the left-hand side of the banked curve, crashing into a plank guard fence on the westerly side of the highway, and immediately thereafter striking and severely injuring Marshall. It all happened so quickly that Marshall was unable to get out of the way. Nugent's car continued more or less out of control until its front bumper guard struck and dented the rear fender of Harriman's stalled Chevrolet, and there Nugent's car stopped. The injury to Marshall occurred a very short time, perhaps a minute or two, or maybe less, after Marshall had started up the hill in response to Prince's suggestion.

Marshall filed his complaint in the court below against both Socony-Vacuum Oil Co., Inc., and Nugent, charging them as joint tortfeasors, each legally responsible for the plaintiff's personal injuries. There was complete diversity of citizenship, since Marshall was a citizen of New Hampshire, Nugent a citizen of Vermont, and Socony a New York corporation. After a rather lengthy trial, the jury reported a verdict in favor of Marshall as against Socony in the sum of $25,000, and a verdict in favor of the defendant Nugent. The district court entered judgments against Socony and in favor of Nugent in accordance with the verdict.

No. 4867.

This is an appeal by Socony from the judgment against it in favor of Marshall. Appellant has presented a great number of points, most of which do not merit extended discussion.

The most seriously pressed contentions are that the district court was in error in refusing Socony's motion for a directed verdict in its favor, made at the close of all the evidence. The motion was based on several grounds, chief of which were (1) that Marshall was guilty of contributory negligence as a matter of law, (2) that if Socony's servant Prince were found to have been negligent in "cutting the corner" on the wrong side of the road, and thus forcing Harriman's car off the highway, Marshall suffered no hurt from this, and such negligent conduct, as a matter of law, was not the proximate cause of Marshall's subsequent injuries when he was run into by Nugent's car, and (3) that in so far as Prince might be found to have been negligent in stopping his truck and letting it stand in the "blind spot" at the foot of the hill, so as to block the right-hand lane of cars coming northerly over the crest of the hill, this negligent conduct was outside the scope of his employment, and hence as a matter of law was not chargeable to his employer, since it was no part of his job to offer a "good Samaritan" towage service to the disabled Chevrolet.

As to (1), it is abundantly clear that the question of Marshall's contributory negligence presented a proper jury issue. No doubt Marshall would have been safer from the risks of traffic accidents if he had got out of the stalled Chevrolet and had seated himself on the snowbank well off the highway, to await the resumption of his journey in the Chevrolet. Instead he chose to get out into the highway and at Prince's suggestion to walk up the grade to warn northbound traffic while Prince and Harriman were preparing to tow the Chevrolet back onto the highway. In one loose sense he "assumed the risk", i. e., the physical risk, in thus subjecting himself to the possibility of injury in a traffic accident. But it is a complete misconception to infer from that fact, as a matter of law, that he was "negligent" in respect of his personal safety. The New Hampshire cases are not clouded by this misconception. See Kambour v. Boston & Maine R. R., 1913, 77 N.H. 33, 86 A. 624, 45 L.R.A.,N.S., 1188; Prichard v. Town of Boscawen, 1916, 78 N.H. 131, 133, 97 A. 563; Piateck v. Swindell, 1930, 84 N.H. 402, 404, 151 A. 262; Vidal v. Errol, 1932, 86 N.H. 1, 6-7, 162 A. 232; Burns v. Cote, 1933, 86 N.H. 167, 164 A. 771. When negligence of a defendant is in issue, the plaintiff in such a case does not prove his case by showing that the defendant chose to pursue a certain course of conduct, well aware that it involved some risk of injury to others. The plaintiff must satisfy the jury, further, that it was an unreasonable risk, i. e., that it was such a risk that a reasonable man...