Moore v. Strong, 8040

• Decision Date: 05 May 1966
• Docket Number: 8041.,No. 8040,8040
• Citation: 360 F.2d 71
• Parties: Margaret C. MOORE, Executrix of the Estate of Ralph E. Colvin, deceased, Appellant, v. Joyce Jolene STRONG, individually and as surviving spouse and next-of-kin of Johnny Ray Strong, deceased, Appellee. Roy WEEKS and Angelo Napoli, Appellants, v. Joyce Jolene STRONG, individually and as surviving spouse and next-of-kin of Johnny Ray Strong, deceased, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

360 F.2d 71 (1966)

Margaret C. MOORE, Executrix of the Estate of Ralph E. Colvin, deceased, Appellant, v. Joyce Jolene STRONG, individually and as surviving spouse and next-of-kin of Johnny Ray Strong, deceased, Appellee.

Roy WEEKS and Angelo Napoli, Appellants, v. Joyce Jolene STRONG, individually and as surviving spouse and next-of-kin of Johnny Ray Strong, deceased, Appellee.

Nos. 8040, 8041.

United States Court of Appeals Tenth Circuit.

May 5, 1966.

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Charles Vance, Liberal, Kan. (H. Hobble, Jr., Chester A. Nordling, Gene H. Sharp and Kerry McQueen, Liberal, Kan., Edgar Fenton, Elliott C. Fenton, Wm. G. Smith and John B. McCaleb, Oklahoma City, Okl., with him on the brief), for Margaret C. Moore.

John M. McPherren, Oklahoma City, Okl. (Foliart, Shepherd & McPherren, Oklahoma City, Okl., with him on the brief), for Roy Weeks and Angelo Napoli.

John R. Couch, Oklahoma City, Okl. (Calvin Hendrickson of Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, Okl., with him on the brief), for Joyce Jolene Strong.

Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.

PICKETT, Circuit Judge.

This litigation arose out of a multiple vehicle collision on U.S. Highway 54, about six miles east of Guymon, Oklahoma, in which a Cadillac automobile, driven by Ralph E. Colvin, a Chevrolet driven by Johnny Ray Strong, and a truck owned by the defendant Napoli were involved. Joyce Jolene Strong sued to recover compensatory damages for injuries to herself, and for the wrongful death of her husband, who was killed in the accident. Two minor children of the Strong family were injured, and a third was killed. The complaint alleges that the injuries were the result of the negligence of the several defendants. Separate appeals were taken from the judgment entered upon the jury verdicts in favor of the plaintiff. The principal error assigned by each appellant is that the evidence was insufficient to sustain the verdict.

Between 7:00 and 7:30 on the evening of June 16, 1963, the Strong family was traveling westward on Highway 54 in a Chevrolet automobile. The day was cloudy, with considerable rain, but it was not yet dark. The asphalt pavement of the highway was wet. A Studebaker Lark station wagon, driven by Thomas A. Peabody, was traveling westward in front of the Strong vehicle. Following the Strong car was a large truck and trailer combination with a total overall length of approximately 50 feet and a gross weight of 65,000 pounds, driven by defendant Roy Weeks, an employee of the defendant Angelo Napoli. The speed of both the Lark and the Strong automobiles was from 50 to 55 miles per hour. The three vehicles were on a downhill slope, with clear vision ahead. As a Cadillac automobile, driven in an easterly direction by 77 year old Ralph E. Colvin, was about to meet and pass the Lark station wagon, there was a collision described as a "side-swipe." The motor hood of the Cadillac flew up, and the car swerved into the lane of westbound traffic, colliding head-on with the Strong car with such force that the Strong car was stopped and carried backward 11½ feet from the point of impact. The speed of the Cadillac was estimated at from 70 to 75 miles per hour at the time it sideswiped the Lark, and at 60 miles per hour when it collided with the Strong Chevrolet. Almost immediately the Napoli truck collided with both automobiles. The Chevrolet was pushed westward and came to rest north of the highway, approximately 45 feet from where it was first struck by the truck. The Cadillac was carried 109 feet to the west before the truck and trailer went off the road on the south side and turned over facing east. The Cadillac continued an additional 168 feet after separating from the truck. Colvin and his wife were killed. It is quite evident from the record that the Strong car was between two powerful forces traveling in opposite directions, and helpless. There is no suggestion that Strong was negligent in any manner, and the amount of the verdict is not questioned. The trial developed into a contest between the Colvin Estate and the owner and driver of the truck as to whose negligence was the proximate cause of the injuries, with the additional claim of the Colvin Estate that the real culprit was the driver of the Lark.

The court instructed the jury that where the negligent acts of two or more persons concur and contribute to cause injury and damage, every person whose negligence proximately contributed to cause the injury and damage is liable to the injured person for the full amount of the damage if such negligence proximately contributed to the injury. The jury was told that such liability was not affected even if it should appear that some other person was negligent and that such negligence proximately contributed to the injury and damage. No exception was taken to this instruction, and its applicability is not questioned by any of the appellants.

Driving a motor vehicle on the wrong side of the road is a violation of the Oklahoma statute and prima facie evidence of negligence which can be overcome only by showing that under the circumstances the violation was excusable and due to something other than the negligence of the driver. 47 Okl.St.Ann. § 11-301; Smittle v. Illingsworth, Okl., 373 P.2d 78; Clark v. Hawkins, Okl. 321 P.2d 648; Garner v. Myers, Okl., 318 P.2d 410; Woods v. United States, 10 Cir., 228 F.2d 734. Whether a person who drives a vehicle on the wrong side of the road is always at fault depends upon the circumstances of each case and usually presents a question for the jury. Rosamond v. Reed Roller Bit Co., Okl., 292 P.2d 373. To overcome the presumption of negligence the Colvin Estate urges that Colvin was without fault in driving the Cadillac into the opposite lane of traffic, because his vision was suddenly obstructed by the upward movement of the hood of his car, occasioned by the negligence of a third party. There is nothing in the record to indicate that after Colvin's vision was obstructed by the raised hood he could not have kept to the right of the center line of the road until he could bring his car to a stop. This issue was squarely presented to the jury by the court's instructions. Furthermore, there was evidence from which it could be inferred that Colvin was not free from negligence in the collision with the Lark. The circumstances indicate that the Colvin automobile was being driven at a high rate of speed. The lowest estimates were from 70 to 75 miles per hour. There was evidence that his car was over the center line of the highway when the "side-swipe" occurred.¹

Appellants Napoli and Weeks assert that the record as a whole fails to show any negligence on the part of Weeks, driver of the truck. Weeks estimated that he was traveling from 125 to 150 feet behind the Strong Chevrolet immediately before the accident, which, in his opinion, was a distance in which he could have safely stopped the truck had the Chevrolet been brought to a stop in the normal manner. That is, by the application of its brakes. Weeks thus asserts that he could not reasonably anticipate the collision between the Cadillac and the Chevrolet, which not only suddenly blocked the west lane of traffic, but also reduced the distance between the Chevrolet and the oncoming truck. The Oklahoma statute, 47 Okl.St.Ann. § 11-801(a), requiring motor vehicles to be operated on highways at a speed which will permit the driver to bring it to a stop "within the assured clear distance ahead" is not inflexible. The statute is to be given a reasonable meaning, and its application contemplates a lawful use of the highway by all drivers of vehicles thereon. Ordinarily, a driver is not bound to anticipate the negligence of another. Griffeth v. Pound, Okl., 357 P.2d 965; Kraft Foods Co. v. Chadwell,, 207 Okl. 379, 249 P.2d 1002; Taylor v. Ray, 177 Okl. 18, 56 P.2d 376. The record is clear that the collision between the Cadillac and the Chevrolet created an emergency for Weeks, but we cannot agree with the contention that there was no evidence of negligence on his part. Weeks testified that he did not see the actual collision between the Cadillac and the Lark, that he first recognized danger when he saw them "dart apart" approximately 540 to 550 feet away. He stated that he immediately went to his brakes, and when "everything seemed normal again" he went back to his accelerator. Weeks testified that the Cadillac continued on its side of the road until about 50 feet from the Chevrolet, when its hood flew up, and that it then swerved hard to the left" into the Strong vehicle.² Weeks thought he was about 240 feet away when the hood of the Cadillac opened.³ He also testified that he immediately applied the brakes hard and steered the truck onto the right shoulder of the highway in an attempt to miss the vehicles which, he said, were coming "toward him." He then released some of the pressure on his brake pedal, turning sharply to the left in an attempt to avoid the Strong automobile, which he said was moving to his right in front of him. The only skid marks made by the application of the truck's brakes were those of its right rear wheels, which began 204 feet east of the point where the Cadillac and Chevrolet collided. There was no evidence on the highway which would indicate that Weeks ever made full use of the truck's brakes. The speedometer of the truck was not functioning, but Weeks estimated the speed of his truck did not exceed 50 miles per hour. There was other evidence that the speed of the truck for some time prior to the accident did not exceed 50 miles per hour. Highway patrolmen who investigated the accident estimated that the truck's speed was from 50 to 55 miles per hour. A passenger in an automobile traveling behind the truck for some distance thought the speed was about 60 miles per hour. The speed limit for trucks in that area was 50 miles per hour. One of the officers testified that in his opinion,...