Sherman v. Lawless

• Decision Date: 06 March 1962
• Docket Number: No. 16789.,16789.
• Citation: 298 F.2d 899
• Parties: Andrew D. SHERMAN, Appellant, v. Violet Jean LAWLESS, Administratrix of the Estate of James L. Lawless, Deceased, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

298 F.2d 899 (1962)

Andrew D. SHERMAN, Appellant, v. Violet Jean LAWLESS, Administratrix of the Estate of James L. Lawless, Deceased, Appellee.

No. 16789.

United States Court of Appeals Eighth Circuit.

February 5, 1962.

Rehearing Denied March 6, 1962.

L. J. Tierney, Omaha, Neb., for appellant and was on the brief.

George B. Boland, Omaha, Neb., for appellee and Clarence R. Sowers, Wichita, Kan., Richard L. DeBacker, Grand Island, Neb., and A. Lee Bloomingdale, Omaha, Neb., were with him on the brief.

Before SANBORN and VAN OOSTERHOUT, Circuit Judges, and GRAVEN, Senior District Judge.

VAN OOSTERHOUT, Circuit Judge.

Defendant appeals from final judgment entered against him in plaintiff's wrongful death action tried to the court without a jury. Plaintiff, Violet Jean Lawless as Administratrix of the Estate of James L. Lawless, Deceased, brought this action to recover for the wrongful death of James L. Lawless, alleged to have been proximately caused by the negligence of the defendant in the operation of his truck and trailer at a point on U. S. Highway No. 281, five miles north of Grand Island, Nebraska, about 3:30 a. m. on September 12, 1958.

Jurisdiction, based upon diversity of citizenship and the requisite amount, is established.

Defendant admits that he was operating his truck on the highway at the time and place alleged, but denies that he was guilty of any negligence which in any way proximately caused the injury resulting in the death of Mr. Lawless. Defendant denied that his truck hit Mr. Lawless and that he inflicted the injuries causing Mr. Lawless' death. By way of affirmative defense, defendant asserted that Lawless was guilty of negligence more than slight in lying in a prone position on the traveled portion of the highway, dressed in dark clothing, on a dark night, and that his injuries were caused by his own negligence or by some unknown aggressor.

This case was tried to the court without a jury, no jury having been requested by either party. The court, after hearing all the evidence, filed findings of fact and conclusions of law and entered judgment for the plaintiff. This appeal followed.

The errors relied upon by defendant for a reversal may be summarized as follows:

1. There is no substantial evidence that defendant was guilty of any negligence which proximately caused the accident.

2. There is no substantial evidence to support the court's finding and conclusion that defendant's truck or trailer struck and injured Mr. Lawless, or in any event there is no substantial evidence to support the finding that the injuries causing Mr. Lawless' death were inflicted by defendant's truck or trailer.

3. The evidence conclusively shows that Mr. Lawless was guilty of contributory negligence more than slight, such as would defeat any right to recover damages.¹

This case presents a most unusual factual situation. It is established that during all times here material, Mr. Lawless was lying in the middle of the north bound traffic lane of Highway No. 281, at a point about five miles north of Grand Island, Nebraska. He was lying on his left side with his head to the north, and facing east. His body was approximately parallel to the edge of the pavement. He was dressed in dark clothing. The night was dark. The pavement was asphalt and had been patched in places, which patches appeared as dark splotches.

Defendant left Grand Island about 3:00 a. m. on the morning of the accident with his truck and trailer, which with their load weighed approximately 19,000 pounds, to deliver some farm machinery to South Dakota. From the outskirts of Grand Island to the point of the accident, he was following an unloaded Chevrolet panel bread truck operated by Mr. Downing. Defendant was traveling at a speed of just under fifty miles per hour and his headlights were on low beam, illuminating the highway some 150 feet ahead of him.

The bread truck driver had his bright lights on. As he approached the object, which turned out to be decedent's body, he braked his truck, then first started to turn to the right, and then turned to the left, avoiding all contact with decedent's body. As he did so, his brake lights flashed. Mr. Downing cannot say how far he was away from the body when he first discovered its presence on the pavement.

Mr. Downing, after passing the body, stopped his bread truck and through his rear mirror saw defendant's truck as its wheels straddled Lawless' body. Defendant and Downing immediately got out of their vehicles and went to Mr. Lawless and found him to be unconscious. Both testified that the body appeared to be in substantially the same position after the accident as before. Mr. Lawless never regained consciousness, and died that afternoon.

The findings of fact signed by the trial court, which were prepared by plaintiff's counsel, appear to be very general in form. There is a finding that the defendant was guilty of negligence but there is no finding as to the specific type of negligence. No purpose will be served in considering the numerous specifications of negligence discussed by counsel and the evidence relating thereto. While the evidence bearing upon defendant's negligence is far from conclusive,² we shall assume for the purpose of this case that the court was justified in finding defendant guilty of negligence in some respect in the operation of his truck.

The burden is upon plaintiff to prove the essential elements of her cause of action by a preponderance of the evidence. In addition to proving negligence, the plaintiff must prove "that such negligence was a proximate cause of the accident, and that damages were caused as a result together with the extent thereof." Johnsen v. Taylor, 169 Neb. 280, 99 N.W. 2d 254, 261.

In the case just cited, the court upheld the direction of the verdict for the defendant, stating in part:

"The evidence of damages is required to be direct and certain. Proof that damage might or could have been caused or was probably caused by the accident is not sufficient to sustain a verdict for a claimant. Such evidence is not of the quality required to satisfy the burden of a claimant to establish by a preponderance of evidence an injury and the extent thereof." 99 N.W. 262.

The court in support of its holding cites and quotes from Bitler v. Terri Lee, Inc., 163 Neb. 833, 81 N.W.2d 318, 319, and Welstead v. Jim Ryan Const. Co., 160 Neb. 87, 69 N.W.2d 308, 309.

Thus it is essential for plaintiff in order to recover to prove that the injury causing Mr. Lawless' death was inflicted by defendant's truck. It is established by expert medical testimony, as the trial court properly found, that death was caused by a severe brain injury. The trial court found such injury was caused by defendant's operation of his truck. Defendant challenges the sufficiency of the evidence to support such finding. The crucial question presented is whether there is substantial evidence to support the finding of the court that the truck caused the brain injury that resulted in Mr. Lawless' death.

We recognize that the testimony of the examining physician shows that decedent had received many injuries in addition to the brain injury, including laceration of the rectal area extending into the abdomen, fractured ribs, numerous brush burns, lacerations and bruises, as well as other injuries. However, there is no proof that any injury except the brain injury caused death.

Under well-established standards for review of findings of fact by the trial court sitting without a jury, the trial court's findings must be accepted unless they are clearly erroneous. The trial court's findings cannot be upset if they are supported by substantial evidence. For the purpose of determining the sufficiency of the evidence to support the judgment, we must of course view the evidence in the light most favorable to the prevailing party, here the plaintiff, and give such party the benefit of all inferences that may reasonably be drawn from the evidence. Plaintiff may establish her case by circumstantial evidence as well as by direct evidence. However, the evidence must be such as to make the plaintiff's theory of causation reasonably probable, not merely possible. Johnsen v. Taylor, supra. If the proven facts go no further than to give equal support to two inconsistent inferences, the judgment must go against the party upon whom rests the burden of proof. See Ford Motor Co. v. Mondragon, 8 Cir., 271 F.2d 342.

There is no direct evidence establishing that decedent's injuries were inflicted by defendant's truck. The testimony of Mr. Downing, who observed the movement of defendant's truck, is that defendant's truck successfully straddled the body.

The circumstantial...