PHŒNIX INDEMNITY COMPANY v. Girouard
| Decision Date | 27 March 1958 |
| Docket Number | No. 16680.,16680. |
| Citation | 252 F.2d 146 |
| Parties | PHŒNIX INDEMNITY COMPANY of NEW YORK, Appellant, v. Manning L. GIROUARD, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Donald Labbe, Lafayette, La., Richard B. Montgomery, Jr., New Orleans, La., for appellant.
J. J. Davidson, Jr., Douglas J. Nehrbass, Lafayette, La., Davidson, Meaux, Onebane & Nehrbass, Lafayette, La., of counsel, for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
This appeal seeks a reversal of the judgment of the trial court based on the verdict of a jury in a personal injury damage suit on the sole ground that the trial court should have held as a matter of law that the plaintiff-appellee was guilty of negligence which, at least partially, contributed to cause the accident.
Recognizing full well the difficulty of presenting a situation which requires the court to take from the jury the questions of plaintiff's negligence and of causation, appellant nevertheless asserts that this is the exceptional case. We do not think so.
Viewing the appellee's evidence from the strongest possible viewpoint, as we are required to do when it is claimed that the evidence does not support a jury verdict, we find the following:
The plaintiff was driving a delivery truck as he approached the intersection of Azalea Street, on which he was traveling eastward, and St. Thomas Street, from which the defendant's truck struck him from his right; he had just stopped to make a delivery at the second house from the corner and his next stop was the first house after he would cross St. Thomas Street. He stopped his truck when he had driven up "where I could see good enough" (later he stated this was three feet back from the intersection). He looked to the right and started off "when I saw the road was clear." When he was within about three feet from the opposite side of St. Thomas Street his truck was hit on the right rear, behind the rear wheel, knocked some 21 feet and he was thrown out and severely injured; he could see several hundred feet to his right; (in response to a question by the judge, he said: "I should say about 400 feet."); the laundry truck that hit the plaintiff's vehicle came from the right in excess of the legal speed limit of 25 miles per hour (the driver testified to 25 miles per hour and that he was 35 feet from the intersection, whereas the physical evidence shows skid marks for his truck of 54 feet before striking the plaintiff's truck, which was then knocked over by the remaining force of the collision); defendant's driver gave no signal, and his truck had no horn.
Appellant's argument is premised on the assumption that either plaintiff did not look to the right before entering the intersection, or, if he did, he failed to observe defendant's truck, which, so defendant claims, must have been not more than 100 feet away. We must take as true the facts and the inferences that may properly be drawn therefrom that most favor the plaintiff. When we do so it is plain that the jury could absolve the plaintiff from contributory negligence. After he stopped, looked, and saw nothing, he started up and proceeded 27 or 28 feet. If he jumped instantly up to 5 miles per hour without any time for shifting gears or reacting or making his decision to proceed, it would still take him nearly four seconds to get to the point where he was struck. The jury need not have believed that he, without even a split second's delay, from a complete stop jumped his truck up to five miles per hour in order to traverse the entire intersection at that speed; of course it is mathematically impossible "to start at five miles per hour." Within five seconds the other driver could have driven nearly 300 feet at 45 miles an hour and nearly 360 feet at 55 miles per hour. The jury could certainly find from the fact that the defendant's truck skidded 54 feet into the plaintiff's vehicle and then knocked it 21 feet...
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