Paul v. Elliot

• Decision Date: 05 January 1940
• Docket Number: No. 9016.,9016.
• Citation: 107 F.2d 872
• Parties: PAUL v. ELLIOT.
• Court: U.S. Court of Appeals — Ninth Circuit

107 F.2d 872 (1939)

PAUL v. ELLIOT.

No. 9016.

Circuit Court of Appeals, Ninth Circuit.

November 24, 1939.

Rehearing Denied January 5, 1940.

Sterling M. Wood, Robert E. Cooke, and Fredric Moulton, all of Billings, Mont., for appellant.

A. G. McNaught and W. W. Mercer, both of Roundup, Mont., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Inez Elliot instituted an action in the state court of Montana against H. B. Paul in which she demanded damages for injuries arising out of an automobile collision; on motion of the defendant the case was removed therefrom to the United States District Court for the District of Montana. The cause was tried to a jury, which returned its verdict in favor of the plaintiff in the sum of $4098.60, and the defendant appeals.

The plaintiff was riding as a passenger in a four-door Ford Sedan automobile driven by her sister Irene Elliot. Plaintiff, Irene, and their thirteen-year-old niece, Jean Elliot, were riding in the front seat of their car, plaintiff on the right and the niece in the middle; the rear seat was piled with luggage. At the time of the accident the defendant was alone in his four-door Dodge Sedan.

The accident occurred January 4, 1937, on the road between Roundup and Billings, Montana, about twenty miles south of Roundup and about thirty-three miles north of Billings. At this point the road curves around an abrupt rise or bluff, which forms an oblique angle to the road-bed. The bluff had been cut on the west side and a fill-in made at that point to form a base for the road, which is ten to fifteen feet higher than the ground immediately to the west. The pavement was twenty-nine feet wide; a white line was painted in the center thereof around the curve; and there was a dirt shoulder on each side of the pavement. At the westerly edge of the shoulder there were extended around the bend a number of wooden posts set about twenty feet apart. These posts were painted white with a black base and stood three feet in height. The left front end of each vehicle received the brunt of the impact, and after the collision the cars came to rest nearly opposite each other and on their own sides of the road, the Elliot car close by the posts at the outer or west edge of the oiled pavement and the Paul car at the inner — nearest the bluff — or east edge of the pavement.

There were no witnesses to the accident other than the occupants of the respective automobiles, and the evidence presented was sharply conflicting. Each party contended the other was driving on the wrong side of the road, and they were in disagreement as to the state of the weather. Appellee's witnesses testified that the sky was overcast and snow was falling lightly but that the center portion of the highway was clear of snow; that snow was piled at the sides. The appellant stated that although the day was stormy and snow was falling rather heavily, he could see approximately a quarter of a mile ahead; that the road was slippery, and was covered with snow about an inch in depth. His first view of the Elliot car was from a distance of 75 to 100 feet. The occupants of the other car testified that the Paul car was quite close to them when they first saw it — that it suddenly swung around the curve and was upon them. Appellee and her sister each testified that they were going only twenty-five miles per hour; Irene Elliot stated their car was stopped an instant before the crash. Appellant Paul gave no testimony as regards the rate of his speed other than the statement that the place of the accident was about thirty-two miles from Billings and that it took him about an hour to drive the distance. Irene Elliot estimated Paul was driving 60 miles an hour. There was, however, no controversy concerning the plaintiff's injuries, which were conceded to be serious.

No error is assigned because of the exclusion or admission of any testimony. The appellant contends (1) that the court erred in failing and refusing to direct a verdict in his favor and (2) that the court committed reversible error in the giving of certain instructions and in the refusal to give certain requested instructions.

The appellant argues "that the physical facts brand the appellee's version of the collision as inherently improbable and physically impossible so that there is, in fact, no substantial evidence of the claimed negligence relied upon."

With this contention in mind we have carefully examined the evidence in the case, and we conclude that the appellee's theory of the case is not inherently improbable or physically impossible and that the case should have been, as it was, submitted to the jury.

"The test to be applied in such a case, of course, is not whether the evidence brings conviction in the mind of the trial judge; it is `whether or not the evidence to support a directed verdict as requested, was so conclusive that the trial court in the exercise of a sound judicial discretion should not sustain a verdict for the opposing party.' United States Fidelity & Guaranty Co. v. Blake (C.C.A. 9) 285 F. 449, 452, and cases there cited; * * *." Sorvik v. United States, 9 Cir., 52 F.2d 406, 410.

The appellant tendered certain instructions, which were given. Complaint is made only in relation to one of them. It is not complained that the instruction was incorrectly read to the jury, but appellant argues that the effect desired was lost by the court having theretofore stated in the course of its charge:

"Now, next we come to the requested instructions of counsel for defendant. Now in these cases, the counsel for the respective parties have the right to submit proposed instructions or rules of law, which they ask the Court to give to the jury. They are called special instructions on the case. The instructions offered by the defendant in this case, and in most cases of this kind, are prepared, based upon a statement of facts as viewed by counsel for the defendant. He construes the facts thus and so, as indicated by his argument to you. He prepares his special instructions accordingly, so that you will observe, as I read some of these instructions, that they have a leaning toward the defendant throughout and the defendant's case. They are calculated, of course, to be more favorable to the defendant than to the other side."

In considering the effect of this statement it must be kept in mind, also, that in the same connection and as a part of his charge to the jury the court said:

"Now again, on the other hand next, we will say, comes the special instructions offered by counsel for plaintiff. And you may observe there that they have a special leaning more favorably to the plaintiff, because they are based upon the facts as claimed to exist by counsel for the plaintiff."

The evident purpose, as revealed by the other parts of the charge, was to make clear to the jury that what might appear to be conflicting statements of the law were presented in this way so that the jury would understand that they were to apply the instruction accordingly as it found the facts of the case to be as contended by the plaintiff or the defendant. Such a procedure, if conceivable harm had been shown to have resulted, might be regarded as error, but from the record it is clear that no injury resulted to the defendant. Moreover, the court in introducing the instructions requested by the defendant said: "* * * I am going to read you the special instructions offered by the defendant, or such of them as I have approved and adopted." Thus the judge gave to the requested instructions his explicit sanction, making them his own.

The single instruction which appellant contended was disparaged by the method above outlined was that "if it appears to you that this claim of the plaintiff that the defendant was driving...