Michael v. United States

• Decision Date: 18 November 1964
• Docket Number: No. 15632.,15632.
• Citation: 338 F.2d 219
• Parties: Jo Ella MICHAEL et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

338 F.2d 219 (1964)

Jo Ella MICHAEL et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 15632.

United States Court of Appeals Sixth Circuit.

November 18, 1964.

R. J. Turley, Lexington, Ky., John M. Keith, Cynthiana, Ky., on the brief, for appellants.

Moss Noble, Lexington, Ky., George I. Cline, U. S. Atty., and Arthur L. Brooks, Jr., Asst. U. S. Atty., Lexington, Ky., on the brief, for appellee.

Before WEICK, Chief Judge, and PRETTYMAN^* and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Plaintiffs-appellants, Michael, et al., appeal from a judgment entered for defendant following trial of a Federal Tort Claims action to the District Judge without a jury. The contested finding of the District Judge was that allegedly negligent conduct of Jasper Slone, a rural mail carrier employed by the United States, was not a proximate cause of the motor vehicle collision in which plaintiffs were injured.

The mail carrier, Slone, was driving his automobile northward on U.S. Highway 25 in Scott County, Kentucky. Contrary to a Kentucky statute, K.R.S. § 189.450(1) he had stopped his vehicle partially on the paved portion of the highway to service a mail box within a few feet of the righthand or eastern edge of the pavement. Slone was followed by a station wagon driven by one Faulk, who slowed his vehicle to a stop, or almost a stop, when Slone stopped to service the mail box. While so stopped, or slowed down, the Slone and Faulk vehicles were blocking travel on the northbound lane of the highway. While the northbound lane was thus occupied by Slone and Faulk, a third northbound vehicle, driven by Johnie Brown, approached them. There was evidence from which the District Judge as trier of the facts could find that Brown was 500 feet to the south of the mailbox when he observed or should have observed the Slone and Faulk vehicles, and was driving 60 miles an hour, considerably in excess of the applicable 45 miles per hour speed limit. Brown attempted to avoid colliding with the vehicles ahead of him, but because of his high speed and the complete failure of his brakes, he ran into the left rear of the Faulk vehicle, and caromed off it into a head-on collision with the southbound automobile in which plaintiffs were riding on the other side of the highway. The highway was 22½ feet wide and Slone occupied enough of the northbound lane while delivering the mail that northbound traffic would have to go some distance into the southbound lane to pass him. The trier of the facts could also find that Faulk, driving the middle car, observed the mail car stop, or slowing to a stop; that Faulk gradually slowed his vehicle as it moved toward the mail car, almost coming to a stop; and that the mail car had moved out from servicing the mail box and was on its way up the highway when Brown's car caromed off the Faulk station wagon into the path of plaintiffs' vehicle. There was also evidence that the Brown car proceeded at a 60-65 mile an hour speed for some 400 to 500 feet with a clear view of the mail car and the Faulk station wagon slowing down or stopping.

In this Court, plaintiffs assert that the action of the mail carrier Slone in stopping his vehicle to serving a mail box violated K.R.S. § 189.450(1), which provides that "No person shall stop a vehicle * * * upon the main traveled portion of a highway * * *," and was accordingly negligence per se. This appears to be the law of Kentucky. Pryor's Adm'r v. Otter, 268 Ky. 602, 105 S. W.2d 564 (1937); Hinton v. Dixie Ohio Exp. Co., 188 F.2d 121, 126 (CA 6, 1951); Jack Cole Co. v. Hoff, 274 S.W.2d 658, 660 (Ky. 1954). It is also the law of Kentucky, however, that such per se negligence will not visit liability on one guilty thereof unless it was the proximate cause of an event relied on for recovery, or at least one of the proximate causes. Hinton v. Dixie Ohio Exp. Co., supra; Illinois C.R.R. v. Swift, 233 F.2d 766, 768 (CA 6, 1956); Phillips v. Scott, 254 Ky. 340, 71 S.W.2d 662 (1934); Murphy v. Homans, 286 Ky. 191, 194, 150 S.W.2d 14 (1940); Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70 (1948).

Another rule of Kentucky law apposite to this case is that one guilty of negligence will not be charged in tort if some independent intervening cause interrupts the chain of causation so as to render such negligence so causally remote as not to be considered a proximate cause. One expression of the Kentucky rule is that "if an independent...