Nash v. Raun

Decision Date14 May 1945
Docket NumberNo. 8601.,8601.
Citation149 F.2d 885
PartiesNASH v. RAUN.
CourtU.S. Court of Appeals — Third Circuit

Thomas D. Caldwell, of Harrisburg, Pa. (Franklin B. Hosbach and Hosbach, Good & Fischer, all of Erie, Pa., and Caldwell, Fox & Stoner, of Harrisburg, Pa., on the brief), for appellant.

John B. Brooks, of Erie, Pa. (Brooks, Curtze & Silin, and Maurice Coughlin, all of Erie, Pa., on the brief), for appellee.

Before GOODRICH and McLAUGHLIN, Circuit Judges, and BARD, District Judge.

BARD, District Judge.

This is an appeal from an order denying defendant's motions for new trial and to have judgment for the plaintiff set aside, notwithstanding the verdict, under Rule 50 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Plaintiff brought a civil action for damages founded on an automobile accident which occurred on October 9, 1941, in Erie County, Pennsylvania, at the right angle intersection of Route 89 and Station Road. Route 89, a through highway, runs north and south, and Station Road, the intersecting highway, runs east and west.

Plaintiff was driving an automobile proceeding westwardly on Station Road, and defendant was driving a heavy truck in a northerly direction on Route 89.

Plaintiff offered no "eyewitness" testimony as to what occurred at the intersection. He testified that severe injuries to his head induced loss of memory as to everything happening between a time shortly prior to the collision and the moment he regained consciousness some time after the accident. Plaintiff's case, therefore, is based on circumstantial evidence.

Witnesses on behalf of the plaintiff, who live about 300 feet from the intersection, testified they heard a loud crash about 7:30 a. m. Upon proceeding to the scene of the accident they found plaintiff's car standing upright in a ditch paralleling the west side of Route 89, about 25 to 30 feet north of Station Road facing the intersection. The center part of the left side of the car was crushed, the front door on the right side open, and the front seat and contents were outside the car. There was no damage to the front of the car, the headlights were lit, and the engine running. Plaintiff was lying a few feet back of the car with his head in the ditch and his feet on the embankment. He was unconscious and was apparently severely injured.

Defendant's truck was also on the west side of Route 89 about 12 or more feet north of plaintiff's car. The truck was lying on its side with its engine facing south toward the intersection. The front fenders were somewhat damaged and the middle of the front axle was four inches in front of the wheels and was bent in the shape of a bow. Milk cans carried on the truck were scattered over the road.

There were tire marks on the right side of Route 89 approaching the intersection which were visible for about 30 feet from the center line of the intersection. The marks were such as would be made by the skid of a tire over a concrete surface. There were other tire marks beginning about the center of the intersection and running in the direction of the plaintiff's car where it rested in the ditch. They were not too distinct, about five or six inches wide, and of a "wavery" nature.

The view of a driver proceeding north on Route 89 is obscured by a row of trees on the right side of an embankment "several feet" high on the southeast corner of the intersection. A driver proceeding west on Station Road must reach within six or eight feet of the intersection before a clear view of Route 89 is available. The visionary hazard was increased at the time of the accident by a fog which reduced the range of vision to "from 50 to 100 feet". There is a stop sign on Station Road east of the intersection.

Upon conclusion of plaintiff's testimony, the defendant moved for a directed verdict, which was denied by the trial court.

Defendant then testified that he was driving 25 to 30 miles an hour on a slight upgrade; that he looked both ways as he approached the intersection and saw no cars approaching; that plaintiff's car flashed into view from the right going about 50 miles per hour when defendant was about six feet from the intersection; and that although he applied the brakes, he was unable to avoid the collision.

The jury returned a verdict for the plaintiff.

The principal question presented by this appeal is whether the evidence recited above was sufficient, under Pennsylvania law, to permit the jury to find that the defendant was negligent. We think the trial court erred in holding that it was.

Plaintiff argues that the evidence shows that defendant was traveling at an excessive rate of speed and failed to have his car under proper control. He relies on the principle that the driver of a motor vehicle is required to keep his car at a speed and under such control that he can stop within the distance he can see ahead, Janeway v. Lafferty Bros., 323 Pa. 324, 185 A. 827, which may be reduced by atmospheric conditions or other visual obstructions. Simrell v. Eschenbach, 303 Pa. 156, 154 A. 369; Shoffner v. Schmerin, 316 Pa. 323, 175 A. 516. While the testimony showed that defendant's vision ahead was limited by the fog to "from 50 to 100 feet", the skid marks1 on Route 89 extended for only 30 feet before reaching the center line of the intersection. If the defendant could have stopped his truck within the distance he could clearly see ahead, i. e., 50 to 100 feet, it cannot be said that he was driving at a negligently excessive rate of speed, there being no other variable factors present. The law does not require that the speed be such that a driver can avoid hitting an object that suddenly appears a short distance before him....

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11 cases
  • Calvert v. Katy Taxi, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 26 juin 1969
    ...evidence a greater likelihood of negligence on the part of the defendant, the plaintiff has no right to go to the jury, Nash v. Raum, 149 F.2d 885, 888 (3 Cir. 1945); James, Functions of Judge and Jury in Negligence Cases, 58 Yale L.Rev. 667, 674 (1949), because any verdict for the plaintif......
  • Secanti v. Jones
    • United States
    • Oregon Supreme Court
    • 3 février 1960
    ...National Hospital Association, 169 Or. 654, 131 P.2d 455. The rule has also been uniformly applied in other jurisdictions. Nash v. Raun, 3 Cir., 1945, 149 F.2d 885, certiorari denied 326 U.S. 758, 66 S.Ct. 99, 90 L.Ed. 455; Medina v. All American Bus Lines, Inc., 5 Cir., 1945, 152 F.2d 61; ......
  • Dill v. Scuka
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 23 juin 1959
    ...circumstances must compel the conclusion that the defendant was negligent. * * * The jury may not be allowed to guess." Nash v. Raun, 3 Cir., 1945, 149 F.2d 885, 888, certiorari denied 326 U.S. 758, 66 S.Ct. 99, 90 L.Ed. 455; Medina v. All American Bus Lines, Inc., 5 Cir., 1945, 152 F.2d 61......
  • Ridgway National Bank v. North American Van Lines, Inc.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 6 janvier 1964
    ...carry his burden. The plaintiff cannot merely claim he was not negligent and therefore the defendant was. As we said in Nash v. Raun, 149 F.2d 885, 888 (3 Cir. 1945), a situation factually similar, "the mere fact that there was an accident and that the plaintiff was not himself negligent, d......
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