Reid v. United States

• Decision Date: 02 September 1971
• Docket Number: No. 20994.,20994.
• Citation: 447 F.2d 275
• Parties: Ernestine REID and Walter Reid, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

447 F.2d 275 (1971)

Ernestine REID and Walter Reid, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 20994.

United States Court of Appeals, Sixth Circuit.

September 2, 1971.

Larry E. Parrish, Memphis Tenn. (Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on the brief), for appellants.

I. H. Murphy, Memphis, Tenn., for appellees.

Before WEICK, PECK and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from a judgment for $3,500 rendered by the United States District Court for the Western District of Tennessee under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The case arises out of a collision between an automobile driven by plaintiff Ernestine Reid and a postal vehicle driven by John Spight, a United States Post Office employee. The District Court determined that Spight had been negligent and that the Government was liable. After a review of the record and the findings of fact and conclusions of law made by the District Court from the bench, we hold that the verdict is supported by the evidence and we affirm the District Court's judgment.

The accident occurred on the morning of December 14, 1966, in Memphis, Tennessee. Mrs. Reid made a left turn from Arrington Street, a side street, onto the northbound lanes of Thomas Street, a four-lane main thoroughfare. About 100 feet north on the right was a Post Office Substation, just to the south of which was a driveway extending from the Post Office parking lot toward Thomas Street. To the south of the driveway was a cafe, and in front of it, parked in a no parking zone, was a large dairy truck about eight feet high.

As Mrs. Reid began driving in the inside (or center) northbound lane of Thomas Street, Spight was preparing to make a left turn from the Post Office parking lot driveway onto Thomas Street to proceed south. Spight's view was obstructed by the dairy truck parked on his left, and he drove into Thomas Street apparently to see whether the way was clear. Because the front of the postal vehicle projected about three feet ahead of the cab, in order to look to the south, Spight had to pull far enough into Thomas Street to partially block the inside northbound lane in which Mrs. Reid's car was travelling. Once in that position, Spight stopped and the two vehicles collided. Mrs. Reid suffered injuries, none of which the District Court found to be permanent. There is no cross appeal questioning the adequacy of the verdict.

The parties remain in some dispute concerning the facts. The Government apparently argues that Spight pulled out of the driveway before Mrs. Reid made her turn onto Thomas Street. Accordingly, it contends that since Spight was already well into the street, Mrs. Reid had a duty to avoid him. But the District Court found that "at the time Mr. Spight pulled out Mrs. Reid was already a motorist on Thomas Street". There is evidence to support this finding, and we may not disturb it. The Government also argues that Mrs. Reid saw Spight's postal vehicle as she was proceeding up Thomas Street, and she should therefore have been able to avoid it. Our examination of the record shows that Mrs. Reid's testimony on this point is somewhat confusing, but it appears that the postal vehicle she testified she saw before the collision was in the parking lot, and not on the street. The District Court in its oral opinion stated:

At the time that he suddenly pulled out in the street, and it doesn\'t make any difference whether Mrs. Reid saw the parked truck before the defendant\'s driver pulled out, because she couldn\'t have seen him if she didn\'t see the parked dairy truck.

In other words, the Court observed that the dairy truck was as much an obstruction to Mrs. Reid's view of Spight's postal vehicle, once it was driven out of the parking lot, as it was to Spight's view of the traffic on Thomas Street. His finding that the vehicle which Mrs. Reid admitted seeing as she was making the turn was parked in the Post Office parking lot is supported by the evidence, and we will not upset this finding as clearly erroneous.

The substantive law of Tennessee of course governs this action. 28 U.S.C. § 1346(b). The Government argues that the District Court erred both in finding Spight culpably negligent and in finding Mrs. Reid not guilty of proximate contributory negligence. We consider the arguments in order.

The basic rule in Tennessee is that negligence consists of the failure to do what a reasonable and prudent person would ordinarily do under the circumstances of the situation * * * and if this negligence was the proximate and direct cause of the injuries and damages sustained by the plaintiffs, the defendant is liable.

Groce Provision Co. v. Dortch, 49 Tenn. App. 57, 350 S.W.2d 409, 413 (1961). The District Court applied the law in the following words:

But the Court finds he Spight was negligent under the common law in that he positioned his car in the inside lane, or the lane next to the curb to see in the circumstances, and thereby was negligent under the common law. * * *

He by his own testimony, did nothing to avoid the collision from that point on. He did not honk his horn; he did

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