Robbins v. Milner Enterprises, Inc.

• Decision Date: 18 April 1960
• Docket Number: No. 18144.,18144.
• Parties: Clifford H. ROBBINS, Appellant, v. MILNER ENTERPRISES, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

278 F.2d 492 (1960)

Clifford H. ROBBINS, Appellant, v. MILNER ENTERPRISES, INC., Appellee.

No. 18144.

United States Court of Appeals Fifth Circuit.

April 18, 1960.

Cary E. Bufkin, Jackson, Miss., Satterfield, Shell, Williams & Buford, Jackson, Miss., for appellant.

Robert C. Cannada, Jackson, Miss., Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss., of counsel, for appellee.

Before CAMERON, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The immediate question is whether summary judgment for defendant in a Mississippi diversity case was properly entered on the theory that the facts showed without a substantial likelihood of contradiction that the plaintiff had assumed the risk of operating an automobile with faulty brakes. F.R.Civ. Proc. 56, 28 U.S.C.A. We think not and reverse.

Robbins, the plaintiff, was a sergeant in the United States Army. He was a skilled driver and, indeed, at the time of his accident, was en route to another Mississippi city where he was to conduct written driver examination tests for members of the Reserve. His claim was a simple one. He was assigned a car from the motor pool at the Jackson, Mississippi military installation. That vehicle — later involved in the wreck which severely injured him — had been turned over to the defendant garage for adjustment and repair of the brakes and repair of the speedometer. The motor pool dispatcher instructed Sgt. Robbins to pick up the car at the defendant's garage. When Sgt. Robbins came to the garage for the car, the work had not been finished. Within a short time, the repairs were reported to have been completed, and the car was turned over to him. At this place arises the critical element of Sgt. Robbins' theory. In positive factual terms in the discovery deposition, Sgt. Robbins stated that at the time the car was delivered to him, the defendant represented that the brakes had been repaired, and that the car was ready and safe to drive.

Sgt. Robbins then drove the car away on his mission. His itinerary is important, not because of any idea of digression, but in giving meaning to the critical, and perhaps decisive, testimony on what Sgt. Robbins knew on each leg of his indirect journey. His ultimate destination was Indianola, Mississippi, some 103 miles from Jackson. He proceeded, however, by an indirect route to afford transportation to a fellow noncommissioned officer. The first leg was Jackson to Yazoo City, approximately 43 miles. The second leg was Yazoo City to Greenwood, 55 miles further. The third leg was Greenwood to Clarksdale approximately 57 miles. After dropping his passenger there, he began the fourth leg from Clarksdale to Indianola, an expected distance of 57 miles. While on the fourth and last leg, the wreck occurred.

The details of the accident are not too important. Sgt. Robbins was driving the car at a very moderate speed behind a large truck. When the truck pulled off the road, he saw for the first time a slow moving farm tractor in his lane ahead. He put on his brakes to reduce speed. When he did so, the brakes locked, the car jerked violently to the left, the steering wheel was pulled out of his hands, and the car "just went over to the left and turned over and rolled me out."

Neither here nor below did the defendant question the existence of a substantial dispute of fact on (a) the representation that the brakes on the car had been completely repaired, (b) the accident occurred because the brakes were defective, (c) the accident was the proximate result of the misrepresentation and (d) substantial injuries were received. More than that, in view of the Mississippi comparative negligence statute,¹ defendant does not assert that contributory negligence of Sgt. Robbins would bar his recovery. The theory of defense, successfully pressed below, was that Sgt. Robbins, after leaving the garage and while on each of the three legs preceding the accident, knew that the brakes were not in fact working properly. His continued driving with this knowledge of the defect and its hazards was a voluntary assumption of risk. Disagreeing strenuously on how to read them, all seem to meet for momentary agreement that in our Erie search for the Mississippi concept of assumed risk, we are to find it in the three leading cases. Saxton v. Rose, 1947, 201 Miss. 814, 29 So.2d 646; McDonald v. Wilmut Gas & Oil Co., 1937, 180 Miss. 350, 176 So. 395; Runnels v. Dixie Drive-It-Yourself System, 1954, 220 Miss. 678, 71 So. 2d 453, 46 A.L.R.2d 397. Akin to these perhaps is our decision in Harris v. Gulf Refining Co., 5 Cir., 1957, 240 F.2d 249, where, disagreeing with the Mississippi trained judge who tried it and a Circuit Judge dissenting in it, this Court held it to have been a question of fact for the jury.

As we view the case in its limited frame, we do not find it either necessary or desirable that we undertake to determine or expound just what are the minima-maxima reaches of the Mississippi doctrine by which, on one hand, assumption of risk is established as a matter of law, and, on the other hand, as a matter of law is not present leaving all in between for jury resolution. Ours is the narrower inquiry whether in advance of the traditional trial, the evidence brought forward on motion for summary judgment forecasts that there is no substantial possibility that the evidence actually adduced will permit a jury finding that Sgt. Robbins did not knowingly assume the risk of injury.

For our purposes, it is enough to say that the Mississippi doctrine rests on the basis that "one who knows, appreciates, and deliberately exposes himself to a danger `assumes the risk' thereof."<sup>2</sup> The essence of the defense is knowledge of the defective condition, conscious awareness or appreciation of the dangers inherent in it, and a voluntary decision to risk likely injury.<sup>3</sup> The quality of deliberate exposure to known danger is graphically portrayed in the distinction drawn by the Mississippi courts between contributory negligence and assumed risk. "The distinction has been tersely said to be that assumption of risk is `venturousness' on the part of the person injured, while contributory negligence is his `carelessness'."⁴

Approaching in this light, the evidence produced on the motion for summary judgment to establish that there cannot be any genuine controversy on the "true facts," we think that it did not compel a conclusion that Sgt. Robbins knew of the defect which caused the brakes to lock during the occurrence of the accident. Neither did it compel the conclusion that the condition of the brakes which he did know of was necessarily the equivalent of knowledge that such deficiencies would likely result in locking, or that he was consciously taking that risk.

In his pretrial deposition testimony upon which motion for summary judgment was largely based, Sgt. Robbins did use the terms that the brakes were "pulling" or "grabbing." But despite the difficulty in finding suitable words into which to translate the varying shadings which the bare word can connote, we must recognize that there may be vast actual differences, both in degree and kind, in the extent to which brakes may be "grabbing." It may be slight, or it may be severe. It might be gradual or it might be sudden. It might be momentary as brakes are applied. It might be continuous from time of application until release of brake pedal pressure. Yet as to each physical occurrence, it would be technically accurate to use the word and say that the brakes were "grabbing." Not only would the word be permissible as a matter of usage to describe a physical phenomenon of varying intensity, but the legal consequences would depend, not solely on the word used, but the other circumstances giving it color and quality. Knowledge that a vehicle's brakes are "grabbing" is, of course, knowledge of that fact. But whether it is knowledge that the brakes were seriously defective and would seize or lock when applied in an emergency would depend on the nature and extent of that "grabbing" and the effect such "grabbing" was having on the action of the vehicle. Even more is required besides the bare word "grabbing" to transmute knowledge of that limited action into a conscious voluntary choice of a known danger. What is true of the term "grabbing" is equally so of "pulling."

On the first leg (Jackson to Yazoo City) Sgt. Robbins noticed "the brakes pulling to the right somewhat." But the pulling was "not too bad" and the "pulling to the right * * * was very little." During the second leg (Yazoo City to Greenwood), again the "brakes * * * pulled to the right" but no "greater than * * * before." Sgt. Robbins recounted that it was "very light, according to the speed I was traveling." On this second leg while going around a curve, the car weaved a little. Sgt. Robbins stopped and discovered a rear tire going down and changed the tire. At Greenwood where the tire was repaired, he asked the service station attendant to check the brakes as he "knew there was something wrong with them" but didn't know exactly what although "it appeared to be very minor." No mechanic was available at that station and the brakes were not checked. On the third leg (Greenwood to Clarksdale), the brakes continued to pull, but whether to the right or left, he did not know. In trying to answer this inquiry, he used, for the first time, the expression of the brakes "grabbing." The "left wheel could have grabbed and pulled you to the right or your right wheel could have grabbed and still pull you to the right." He could not determine "which wheel was grabbing, but they were grabbing." He acknowledged that "it was obvious" to him "that a wheel was grabbing" but there is no description of how much or how badly. On the final and fourth leg (Clarksdale to Indianola), the brakes "grabbed again" and as they did "pulled to the right," but only, his affidavit elaborated, "slightly." Sometime thereafter the accident occurred. When he...