Pryor v. Strawn, 10059.

• Decision Date: 29 October 1934
• Docket Number: No. 10059.,10059.
• Citation: 73 F.2d 595
• Parties: PRYOR et al. v. STRAWN.
• Court: U.S. Court of Appeals — Eighth Circuit

73 F.2d 595 (1934)

PRYOR et al. v. STRAWN.

No. 10059.

Circuit Court of Appeals, Eighth Circuit.

October 29, 1934.

F. H. Gaines, of Omaha, Neb. (Charles F. McLaughlin and F. S. Gaines, both of Omaha, Neb., on the brief), for appellants.

Harold M. Kelley, of Omaha, Neb. (Robert J. Webb, of Omaha, Neb., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge, delivered the opinion of the court.

This is an action to recover damages caused by the alleged death by wrongful act of Frank E. Strawn, appellee's intestate. The parties will be referred to as they were designated in the lower court.

At the close of all the evidence, defendants moved for a directed verdict, assigning, among other grounds, the insufficiency of the evidence. The case was sent to the jury on instructions, to which the defendants saved certain exceptions. The jury returned a verdict in favor of the plaintiff for $10,000, and, from the judgment entered thereon, this appeal has been perfected.

Defendants assign error in three particulars: (1) That the court erred in denying their motion for a directed verdict; (2) that at the time of his death plaintiff's intestate was in the employ of the defendant Lucius Pryor, by virtue of which he was entitled to compensation insurance, and hence an action for damages would not lie; (3) that the court erred in its instruction to the jury which set forth a statute of Kansas relative to the law of the road.

The denial of defendants' motion for a directed verdict brings before us the question of the sufficiency of the evidence to sustain the judgment and verdict. In considering that question, we do not weigh the evidence, but examine it only for the purpose of determining whether or not there was substantial evidence to sustain the verdict. Illinois Power & Light Corp. v. Hurley (C. C. A. 8) 49 F.(2d) 681. We must accept the testimony in favor of plaintiff as true, and plaintiff is also entitled to such reasonable favorable inferences as may fairly be drawn therefrom, and, where the evidence, when so considered, is of such a character that reasonable men may reach different conclusions, then the case presents a jury question, and the court should not direct a verdict. Wharton v. Aetna Life Ins. Co. (C. C. A. 8) 48 F.(2d) 37; Illinois Power & Light Corp. v. Hurley (C. C. A. 8) 49 F. 681; Limbeck v. Interstate Power Co. (C. C. A. 8) 69 F.(2d) 249; Asher v. United States (C. C. A. 8) 63 F.(2d) 21; Wheeler v. Fidelity & Deposit Co. (C. C. A. 8) 63 F. 562; Self v. New York Life Ins. Co. (C. C. A. 8) 56 F. (2d) 364; Farmers' Nat. Bank v. Missouri Livestock Commission Co. (C. C. A. 8) 53 F. (2d) 991; Bank of Union v. Fidelity & Casualty Co. (C. C. A. 8) 62 F.(2d) 1040.

It appears from the evidence that on March 23, 1933, Frank E. Strawn, the deceased, was a passenger in an automobile driven by defendant Phillip Pryor, from Falls City, Neb., bound for Wichita, Kan. The defendant Lucius Pryor owned the automobile, and it was being driven under his direction. Martino Rossi was also a passenger in the car, with the two defendants and the deceased. The accident resulting in the death of Frank E. Strawn occurred on United States highway No. 75, about 11 miles south of Fairview, Kan., which is about 40 miles from Falls City, Neb. The automobile, with the owner, driver, and passengers, left Falls City about 9 o'clock in the morning of March 23, 1933. There had been a bad storm the previous night, and in the morning the road was wet and slippery. It was snowy and icy, and the snow and ice had begun to melt. The surviving passenger, Rossi, as a witness for plaintiff testified: "I was very nervous and before the accident happened, I say to Mr. Pryor and his son I would get out of the car, and I was very scared. The road was slippery that morning and I got seared myself. The road was slippery on account of the snow the night before and then the rain. The condition was slippery notwithstanding the gravel. The car had no chains on. I looked at the speedometer that morning and it said 38 to 40. I said to Phillip Pryor, `Go easy, otherwise I will get out of the car,' and then the accident came a few seconds after that."

Defendant Lucius Pryor, who was not driving the car, said he kept his eyes glued on the road and the speedometer during the trip. Approaching the point where the accident occurred, the car went up a slight hill, and it was when the car passed over the summit and started the descent of the hill that it began to skid. The car slid down the road a distance of 290 feet when it crashed into a concrete culvert, inflicting injuries on plaintiff's intestate, from which he died. The last half of the distance from the top of the hill to the culvert was practically level road. As the car started sliding, its speed increased a little. The driver put his car into second gear, but did not put his foot on the brake. Defendant Phillip Pryor testified: "Then we started to slide sideways so the car slid down this little hill sideways until we crashed into the culvert."

The north edge of the culvert was about 290 feet from the top of the hill. The driver had operated a car for seven or eight years in both city and country driving. The car was in good condition; the tires were nonskid, in good shape, and the brakes were in excellent condition. The driver was not familiar with the road.

Defendants contend that the evidence shows the existence of a depression or "chuck hole" on the south side of the elevation or hill, and that it was there the car started to slide, the slide continuing until the collision with the concrete culvert, and that the depression caused the rear end of the car to swerve and start sliding or skidding. Evidence for defendants shows the road to have been dragged, and indicates that the ice and snow, which had fallen the previous night, were not on the road, but that it was firm, though moist, after leaving Falls City. Their testimony indicates that, between the "chuck hole" and the concrete culvert, the road was muddy. It is urged by the defendants that a speed of 30 to 40 miles an hour was not excessive, that the evidence shows the road was not slippery before the hill was reached, and that contact with the "chuck hole," which could not be seen until the car was within 20 or 30 feet of it, caused the accident. From these facts, it is argued by defendants that the accident was unavoidable.

There was evidence, however, from which the jury might have found that the car was being driven at an excessive rate of speed, in view of the slippery condition of the highway. The "chuck hole," described by defendants' witnesses as a hole in the middle of the road, about three feet wide, north and south, eight feet east and west, and six inches deep, was described by a witness for plain...