Mitchell v. United States
| Decision Date | 25 June 1968 |
| Docket Number | No. 17932.,17932. |
| Parties | James Donald MITCHELL, Plaintiff-Appellant, v. UNITED STATES of Amercia, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert D. Simmons, Bowling Green, Ky., for appellant, Allender, Simmons & Robertson, Bowling Green, Ky., on brief.
Philip Huddleston, Asst. U. S. Atty., Louisville, Ky., for appellee, Ernest W. Rivers, Asst. U. S. Atty., Louisville, Ky., on brief.
Before EDWARDS, CELEBREZZE and COMBS, Circuit Judges.
Plaintiff-Appellant originally brought this suit in the Circuit Court of Green County, Kentucky, against Ernest L. Wright, as an individual defendant. Since the traffic accident upon which the suit was based occurred while Mr. Wright was acting in the scope of his employment as Superintendent of the Abraham Lincoln Birthplace National Historic Site, the United States substituted itself as party-defendant and had the case removed to the United States District Court for the Western District of Kentucky. In the District Court the Government counterclaimed for damage to its property and the case was tried to the Court without a jury pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and (c). The Court rendered judgment for the Defendant on the Plaintiff's claim and for the Plaintiff on Defendant's counterclaim. Only the Plaintiff has appealed contending that the Court's verdict on the primary claim was based on an erroneous interpretation of the law.
The factual situation is rather simple, although on the determinative issues there is a considerable conflict in the evidence. Plaintiff and Mr. Wright were traveling in the same direction on Kentucky Highway 61, which is a two-lane road. Plaintiff was in the lead vehicle, a pick-up truck; and Mr. Wright was about a quarter of a mile behind when the Plaintiff's vehicle first came into view. Plaintiff, who was intending to turn left onto a gravel road a few hundred yards up the highway, testified that he checked his rear view mirror and saw the Studebaker Lark driven by Mr. Wright and saw that the car "* * * was coming up on him a little bit fast * * *" He also testified, however, that several hundred yards from the intersection he gave both a blinker signal and a hand signal of his intention to turn left and that he checked his rear view mirror before turning and did not see a car attempting to pass him in the left-hand lane.
On the other hand, Mr. Wright testified that as he approached the Plaintiff's truck no signal of an intention to change direction was given and that if a signal had been given he would have been able to see it. Mr. Wright also testified, however, that he gave no horn signal of his intention to pass as required by KRS § 189.340. As a result of neither driver knowing what the other was doing, the Plaintiff turned left as Mr. Wright was passing his truck on the left, and the two vehicles collided.
Although the Plaintiff raises an issue concerning the sufficiency of the evidence, his primary contention is that the District Court erroneously placed the burden on the Plaintiff to prove that he was free from contributory negligence. If that contention is accurate, the Court committed reversible error; for both in the federal courts, Winn v. Consolidated Coach Corporation, 65 F.2d 256 (6th Cir. 1933), and in the Kentucky courts, see Rule 8.03 Ky.R.C.P. and Baird v. Cincinnati, New Orleans & Texas Pacific Railway Co., 315 F.2d 717, 720 (6th Cir. 1963) (applying Kentucky law), contributory negligence is an affirmative defense, and the burden of proving it lies with the defendant. Since the District Court issued an oral opinion from the bench, we do not have the benefit of clear-cut findings of fact and conclusions of law; nevertheless, we believe that on the issue of contributory negligence the District Court did place the burden of proof on the wrong party.
In its opinion the District Court stated:
"The burden being on the plaintiff to sustain his case by proof, also to the extent that he, himself, was not contributorily negligent, has not been sustained by the plaintiff here."
While this statement is somewhat ambiguous, analysis of the Court's decision, lends other support to the...
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