McFall v. Tooke

• Decision Date: 05 October 1962
• Docket Number: No. 14681.,14681.
• Parties: Marable McFALL, Plaintiff-Appellee, v. John TOOKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

308 F.2d 617 (1962)

Marable McFALL, Plaintiff-Appellee, v. John TOOKE, Defendant-Appellant.

No. 14681.

United States Court of Appeals Sixth Circuit.

October 5, 1962.

COPYRIGHT MATERIAL OMITTED

Adrian H. Terrell, Paducah, Ky. (Terrell, Schultzman & Hardy, Paducah, Ky., on the brief), for appellee.

William B. Byrd, Paducah, Ky. (Waller, Threlkeld, Whitlow & Byrd, Paducah, Ky., on the brief), for appellant.

Before CECIL, Chief Judge, and WEICK and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

This is an appeal by defendant-appellant, John Tooke, from a judgment of $43,090.65 entered upon a jury verdict in favor of plaintiff-appellee, Marable McFall. The action sought damages for personal injuries suffered by plaintiff when, as a pedestrian, he was struck by an automobile driven by defendant. This is a diversity case and Kentucky law controls.

Upon a first trial of the cause, the jury disagreed. The verdict upon which judgment was entered came at the conclusion of a second trial. On the first trial, defendant's motions for a directed verdict at the end of plaintiff's proofs and at the close of proofs were denied. A motion, made after the discharge of the jury, for judgment in accordance with defendant's motions for a directed verdict (F.R.Civ.P., Rule 50(b), 28 U.S.C.A.) was likewise denied. Defendant's Statement of Questions Involved on this appeal is as follows: "Was defendant-appellant entitled to judgment in accordance with his motions for directed verdicts pursuant to F.R.Civ.P., 50(b), at the conclusion of the first trial?"

Defendant's motions for direction of verdict and for judgment were based on three grounds: first, that there was no evidence from which the jury could find the defendant guilty of negligence which was a proximate cause of the injury; second, that plaintiff was guilty of contributory negligence as a matter of law; and third, that plaintiff's contributory negligence, under the facts of the case, could not be excused by the jury's application of the last clear chance doctrine. The District Judge, at the first trial, submitted to the jury the questions of defendant's negligence, plaintiff's contributory negligence, and whether, if they found plaintiff guilty of contributory negligence, the defendant, nevertheless, had a last clear chance to avoid striking the plaintiff. The language employed by the District Judge in submitting these issues on the first and second trial is not criticized.

On this review, we follow the universal rule that the evidence must be considered most favorably to the plaintiff, drawing therefrom all legitimate inferences on his behalf. In this light, we recite the undisputed facts and those which the jury could find from the evidence. This pedestrian-motorist collision occurred on U. S. Highway 68 within the city limits of Cadiz, Kentucky, at about 7:30 P.M. on October 8, 1958. Highway 68 runs in a generally east and west direction at this point, and has a paved surface 18 feet wide. The highway is substantially straight and level for about a half mile to the east of the place where the events here involved occurred. The posted speed limit at that point was 35 miles per hour. Plaintiff, an adult, left a motel on the south side of the highway to go to a restaurant on the north side thereof. Before entering onto the pavement he looked both ways and did not see any approaching vehicles. With a companion on his right, he proceeded "at an ordinary pace" to cross the highway, walking in a northwesterly direction on a diagonal course. He did not look again to the east while crossing and was struck by defendant's automobile, coming from the east, just as he was "stepping off the concrete" — "his front foot was going off the concrete." The plaintiff was carried on the hood of defendant's car a distance of 173 feet before his body slid off the hood. Defendant's car stopped about 40 feet beyond the point where plaintiff's body had fallen. There was evidence that defendant was going fifty to sixty miles an hour when he struck plaintiff.

There was evidence that a person on the south edge of the pavement, looking to the east from the motel, would, in daylight, have an unobstructed view of upwards of 2,000 feet. At the time of the accident, which occurred after nightfall, the highway for several hundred feet to the east of the motel from which plaintiff started was brightly lighted by flood lights and other illumination on the restaurant, gas stations and light poles. There was evidence that the brightly lighted area extended 405 feet. Plaintiff's testimony was to the effect that there was no vehicle within the brightly lighted area when he looked to the east. When pressed to give how far this area extended, he said that "it was more than 200 feet." He further said, "I don't know whether you could see beyond those bright lights at the station, filling station, or not, but I doubt it, because it is dark here (sic)." Plaintiff was not on a cross walk as he proceeded across the pavement.¹

Defendant's version of the accident was that, driving from the east, he reduced his speed from 40 miles per hour to about 25 miles per hour as he came to the city limits of Cadiz. He had his dimmers on.² As defendant approached, and proceeded into, the brightly lighted area where the collision occurred, his view ahead was entirely unobstructed. There were no vehicles ahead of him or approaching from the opposite direction. Defendant testified that at the time he reached the lighted area, he could have seen a man at a distance of at least 350 or maybe 400 feet ahead. He testified that at no time did he see the plaintiff and his companion crossing his path from the south to the north edge of the pavement. He said that he observed two men standing off of, but adjacent to, the north edge of the pavement when he was about 58 feet (the width of the courtroom) away from them. He then slowed his car to 20 miles per hour and when he was 6 to 8 feet from the point of impact, plaintiff moved "a good step" out onto the pavement. Defendant insisted that plaintiff was moving from north to south in the direction of the motel but he wasn't sure whether, so moving, he was going backwards or forwards. He stated he had no time to do anything to avoid striking plaintiff. He explained the distance he traveled after the impact by saying that he feared that a sudden stop would throw plaintiff off the hood and under the wheels of his car, so he gradually slowed down until plaintiff did slide off the car. He then pulled over onto the shoulder.

1) Defendant's negligence.

Under the foregoing facts, the jury could find that defendant was guilty of negligence which was a proximate cause of his striking the plaintiff. There was evidence that he was driving in excess of the applicable speed limit, a speed that the jury could find unreasonable without reference to the speed limit. Defendant was entering an area with business places on both sides of the highway. Even though under K.R.S. 189.570(4) he had the right of way over pedestrians crossing at places other than at a crosswalk, he was obliged, both under common law duties and under subsection (4) (d) of the above statute, to exercise due care "to avoid colliding with any pedestrian upon any roadway." No authorities need be cited for the proposition that it was his duty to keep a lookout for pedestrians and other traffic on the highway, to sound his horn if necessary (see K.R.S. 189.570 (4) (d)) and to proceed as an ordinarily prudent person would have done under like circumstances. The jury could find that he neglected such duties and that his negligence was a proximate cause of the collision.

2) Contributory negligence as a matter of law.

Contributory negligence is an affirmative defense which must be pleaded and proved by defendant. (Rule 8.03, Ky.R.C.P.) On a motion for a directed verdict based on contributory negligence, "the burden is upon the defendant to establish * * * that plaintiff was guilty of some specific act, or omission to act, which did not meet the standards of conduct exacted by law." Eichstadt v. Underwood, 337 S.W.2d 684, 686 (Ky., 1960). A verdict will not be directed except where the only fair and reasonable conclusion that can be drawn by reasonable minds is that plaintiff's own negligence was a contributing proximate cause of the injury. Eichstadt v. Underwood, supra; Neal v. Ashland-Ironton Transfer & Ferry Co., 201 Ky. 332, 256 S.W. 721 (1923). In meeting his burden on such issue, the defendant may rely on plaintiff's own description of his conduct. If, however, there are gaps in the proof which leave uncertainty as to some factual elements relevant to the question of plaintiff's contributory negligence, the consequence of such failure of proof must fall upon the defendant.

We apply these rules to the following facts. A pedestrian who is about to cross an 18 foot pavement, from south to north, looks both ways for traffic. Upon his view to the east, he ascertained that there was no vehicle within a distance of 405 feet from the point at which he was to enter the travelled surface. He proceeded at a normal walk somewhat diagonally to the northwest (the exact angle is not determined by the evidence) and never looked again to the east while crossing. When he had reached to within one step of the north edge of the pavement, he was struck by an automobile travelling at 60 miles per hour. It should be noted that there is a failure of proof as to the angle at which plaintiff crossed the highway and the rate of speed of his walking. Thus there is nothing from which to determine exactly the distance and time involved in plaintiff's crossing. Absent such proof, we do not think that a jury would be compelled to find that, because plaintiff was struck before he had crossed the road completely, the defendant's vehicle must have been within the 405 feet of brightly lighted area, the extent of plaintiff's view at the moment he looked to...