Platis v. United States, C 183-66

• Decision Date: 07 August 1968
• Docket Number: C 211-66.,C 184-66,No. C 183-66,C 207-66,C 183-66
• Citation: 288 F. Supp. 254
• Parties: Nick PLATIS, Plaintiff, v. UNITED STATES of America, Defendant. Kenneth JONES, Plaintiff, v. UNITED STATES of America, Defendant. George MARICICH, Jr., Plaintiff, v. UNITED STATES of America, Defendant. Helen N. DAY and Roban Day, a minor, acting by and through Helen N. Day, her general guardian, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Utah

288 F. Supp. 254

Nick PLATIS, Plaintiff, v. UNITED STATES of America, Defendant.

Kenneth JONES, Plaintiff, v. UNITED STATES of America, Defendant.

George MARICICH, Jr., Plaintiff, v. UNITED STATES of America, Defendant.

Helen N. DAY and Roban Day, a minor, acting by and through Helen N. Day, her general guardian, Plaintiffs, v. UNITED STATES of America, Defendant.

Nos. C 183-66, C 184-66, C 207-66, C 211-66.

United States District Court D. Utah, Central Division.

August 7, 1968.

COPYRIGHT MATERIAL OMITTED

Paul N. Cotro-Manes and Tom G. Platis, Salt Lake City, Utah, Therald N. Jensen, Price, Utah, for plaintiffs.

H. Ralph Klemm, Asst. U. S. Atty., Salt Lake City, Utah, for defendant.

RITTER, Chief Judge.

The present actions, under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), § 2671, and § 2674,¹ arise out of a head-on collision which occurred in Utah when Airman First Class Williams, a member of the military forces of the United States, driving his own automobile, ran into an automobile driven by Norman Day. Norman Day was killed, and three other men, passengers in the car driven by him, were seriously injured, one of them suffered a broken back and is 100% disabled. Helen N. Day, the widow of Norman Day, for herself, and as the guardian of their minor child, Roban Day, the three passengers, Platis, Jones and Maricich brought these suits against the United States, alleging that Airman First Class Williams was negligent, that his negligence was the direct and proximate cause of the accident, that he was an employee of the government acting within the scope of his employment, and that his employer, the United States was liable vicariously under the doctrine of respondeat superior.

The United States answered and entered a general denial, plead contributory negligence, which was not proved.

In this state of the record, there are three questions to be answered:

1. Was Williams negligent and did his negligence cause the collision?

2. Was Williams an employee of the United States acting within the scope of his employment?

3. What, if any, damage was suffered?

We proceed to the evidence on these issues.

NEGLIGENCE

At about 7:30 a. m., June 25, 1965, four miles west of Green River, Utah, a member of the United States Air Force, Airman First Class Williams, driving west on Highway U.S. 50 & 6, ran into a car driven by the decedent Day, who was driving east on the same highway with three other men in the car. They were on their way to work at the Atlantic Research & Missile Plant in Green River. It was a bright clear day, no clouds, and the sun was up. The road conditions were good, dry and level, a hard surfaced interstate highway, straight for a long distance both ways.

The impact was at a "T" junction of Highway U.S. 50 & 6 and Highway U-24, known as the Hanksville road, which takes off from the main highway and runs southerly. The highway east of the junction was plainly marked with a sign "JUNCTION AHEAD", and a sign "U-24" with arrow pointing south, and "U.S. 50 & 6" with arrow pointing west.

The highway at the junction was also plainly marked by three warning lines painted on the hard surface: a center broken white line and two yellow lines, one on each side of the broken white line, which indicated no passing at that point. And, those markings on the pavement extended back easterly toward Green River for a distance of approximately 900 feet. There were similar warnings for cars approaching the junction from the west.

The cars had struck and come to rest in the approach to Highway U-24, clear over beyond the line of the shoulder on the south side of U.S. 50 & 6.

Day had tried desperately to avoid the collision. His car laid down 97 feet of brake marks prior to the impact. He had pulled over to his extreme right until the marks of all four wheels were in the borrow pit, and the car slid along it to the point of impact.

The Williams car left no skid, scruff or brake marks of any kind anywhere on the road.

Airman Williams says in his deposition that he followed a white car out of Green River until it stopped at the Hanksville Junction.

Two passengers in the Day car who survived gave eye witness accounts. As they approached the intersection they saw a white car stopped there. They noticed another car (Williams) coming up behind it which "just came over in our lane of traffic, swung around the car and came into our lane of traffic." They saw the (Williams) car cross over the double yellow line, cross over the highway, and "it just turned right out in front of us and hit us."

The white car was attempting to make a left turn onto U-24. Witness Platis testified that he saw the left turn signal light operating on this car. The testimony of Jones was that he saw the left turn signal light operating and also a hand signaling a left turn.

To the judge advocate² at Hill Air Force Base, 19 days after the accident, Airman Williams gave a written sworn statement in which he said: "I later found the vehicle in question (white car) was stopped and was going to make a left turn. At the time I observed the vehicle initially no signal was apparent; however between the time I first observed the vehicle and the time I realized that he was stopped, he did signal for a left turn." This sharply conflicts with his deposition taken nearly two years after the accident in which he says he saw no hand signal from the car and no turn light signal.

So Williams crossed over the double yellow and broken white lines. Not only that. He crossed over the entire width of what was for him the wrong side of the highway, crowded the Day car off the highway into the borrow pit and to the point of impact on U-24.

And Williams crossed those "NO PASSING" lines and passed the white car on the left while it was stopped at the intersection, signaling for a left turn in a lawful manner.

That Williams was attempting to avoid a rear end collision with the stopped white vehicle is admitted in the written sworn statement to the judge advocate 19 days after the accident: "I attempted to brake my vehicle to avoid a rear end collision with the stopped vehicle." And again he admitted it in his statement, two months after the accident, to an insurance adjuster in Portland: "I remember I was trying to avoid rear-ending another car—." But, when his deposition was taken nearly two years after the accident, he said in reference to this statement, "At that time (in Portland) I didn't know exactly what happened."

Note, however, he does not repudiate the same admission to the judge advocate 19 days after the accident. His memory two years after the accident ordinarily would not be as clear as 19 days or two months after. It is significant, also, that the only thing he remembered when he talked to the insurance adjuster in Portland was this statement.

Williams was following another vehicle more closely than was reasonable and prudent. In his deposition taken in April 1967, Williams tells us that he had followed a white car out of Green River for quite a distance, (four miles), which had been traveling "right in front", at the same rate of speed apparently, 50 to 55 miles an hour, and "all of a sudden" he realized this car was "stopped or was slowing down, and I braked my car and this is where the accident started." The white car "appeared to be stopped in my lane of traffic, yes."

"Suddenly the distance shortened," and he tells us he thought he had to stop because of the rapid rate he was overtaking the white car. "Just before" he got "back of the white car" his car swerved to the left. "Upon hitting my brakes I began an immediate swerve into the left lane of traffic. At this time I saw there was an oncoming vehicle in the left lane." When he braked the car, it swerved to the left-hand lane and "I lost control of it."

Williams failed to keep a reasonable and prudent look-out for approaching traffic. His testimony indicates he was keeping no look-out at all. Nowhere in his testimony does he say he was looking ahead, on the watch for approaching cars. The government attorney wholly neglected to ask him about that.

If he had looked, he could have seen the Day car coming from a long distance up the road. It was a bright, clear morning, no clouds, and the sun was up. The sun was behind him and caused him no difficulty. The road conditions were good, dry and level. The highway was relatively straight. His view was unobstructed for a long distance up the road. A photograph in evidence shows these road conditions. There was no traffic except the three cars of plaintiff, defendant and the white car.

When did Williams see the Day vehicle? His testimony is: "Upon hitting my brakes I began an immediate swerve into the left lane of traffic. At this time I saw there was an oncoming vehicle in the left lane." He also says at no time prior to the collision did he see the vehicle he hit.

"When I realized there was another car in the left lane it was too late."

When I swerved into the other lane, I saw him, but it was just a split second. I couldn't tell what kind of car it was or anything else. It was just there."

To counsel's question: "Q. Approximately how many seconds elapsed from the time you first noticed the white car slowing down until you swerved across the center line", Williams answered: I don't know. Very, very few. A very short time * * * two or three seconds."

Williams was not in the exercise of ordinary and reasonable care and prudence to keep his car under proper control. The witnesses in the Day car saw Williams' car come up behind the white car, swing around it, and come into their lane of traffic. They saw Williams' car cross over the double yellow line, cross over the highway, and "it just turned right out in front of us and hit us."

To the highway patrolman at the scene, Williams stated: that he really didn't know what prompted him to make "the pass; he must have been fatigued or road hypnotized."

To the judge advocate and to...