Smith v. Welch

Decision Date22 May 1951
Docket NumberNo. 4183.,4183.
Citation189 F.2d 832
PartiesSMITH et al. v. WELCH et al.
CourtU.S. Court of Appeals — Tenth Circuit

COPYRIGHT MATERIAL OMITTED

Welcome D. Pierson, Oklahoma City, Okl., for appellants.

Walter Hubbell and Carl Dolman, Walters, Okl., for appellees.

Before BRATTON, HUXMAN, and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

Tommy Welch, an infant, through his father and next friend, brought this action in the District Court of Cotton County, Oklahoma, to recover damages sustained as a result of a collision between a pickup truck in which he was riding and a heavy transport truck owned by the defendant, Strickland Transportation Company, and driven by the defendant, Smith. There was a diversity of citizenship between plaintiff and the defendants and the case was removed to the United States District Court for the Western District of Oklahoma where it was tried to a jury. The jury returned a verdict in favor of the plaintiff in the sum of $35,000. The trial court was of the opinion that the verdict was excessive and ordered a remittitur of $10,000 to which plaintiff agreed and judgment was entered on the verdict for $25,000. This appeal is from that judgment.

On April 30, 1948, the plaintiff, Tommy Welch, an 18 year old boy, was driving a one-ton Studebaker pickup truck in a northerly direction on U. S. Highway 277 and was about eight miles west of Walters, Oklahoma. At that point highway 277 makes a sweeping turn to the east. The curve is approximately one-quarter of a mile in length and is banked to the inside. State highway No. 5 runs east and west and joins highway 277 at the easterly end of the curve. This junction creates what is referred to as a Y. At the westerly end of the curve the two highways are connected by a wing of highway 5 which permits northbound traffic on highway 277 to avoid the curve and continue in a northerly direction until it reaches highway 5. As the plaintiff approached the junction at the west end of the curve he intended to leave highway 277 and continue north to highway 5. This necessitated his crossing the lane of traffic to his left. The plaintiff testified that as he approached the curve he did not notice any traffic approaching from the opposite direction and moved his truck over onto the left side of highway 277 and crossed over onto the connecting portion of highway 5; that after he had completely cleared highway 277 and was a considerable distance beyond the intersection of the two highways, he was struck broadside by the heavy truck driven by Smith. The pickup was carried by the larger truck in a westerly direction and both vehicles went into the borrow pit west of highway 5. The pickup was completely demolished and the plaintiff severely injured. A school bus traveling on highway 277 preceded the plaintiff at an undetermined distance. Plaintiff testified that it was about 100 yards ahead of him and there was some evidence to corroborate this. He also testified that he had cleared the left side of highway 277 and had proceeded onto highway 5 for a distance equal to about 5 lengths of the pickup truck. There was evidence to corroborate this to some extent. The highway patrolman who investigated the accident, a witness for the defendants, testified that the point of impact between the two vehicles occurred on highway 5, but he was unable to say whether the pickup had completely cleared highway 277. The evidence is sufficient to sustain a finding that defendants' truck left highway 277 and proceeded in a westerly direction striking plaintiff's truck after it had cleared highway 277 and was completely on highway 5.

The principal grounds for reversal grow out of the court's charge to the jury. It is contended that in this charge the court made prejudicial comments on the evidence by emphasizing plaintiff's theory of the case and failing to call attention to the defenses or to defendants' theory. In examining the charge we find the statements concerning the evidence no more than explanatory and very much restrained. The court briefly analyzed the complaint, quoted from the Oklahoma statute regulating speed on the highway and the necessity of vehicles which are about to meet and pass each other to keep to the right of the center of the road. Very brief mention was made of plaintiff's testimony as to where the collision occurred. It was explained that there were only three eye witnesses to the accident: plaintiff, the defendant Smith, and a fellow employee, all interested witnesses, which might be considered in determining the weight and credibility to be given the testimony of each. The remaining reference to the evidence was a reasonably accurate recital of some of the highlights of the testimony of witnesses for both plaintiff and defendant. The jury was then told: "The Court does not want to indicate to you in any way his attitude with respect to this testimony. That is your function." Ordinarily comments of a court upon evidence are to clarify the issues, assist the jury in eliminating immaterial matters and to focus its attention upon the crucial points of the case. It is settled law in federal courts that for these purposes the trial judge has the right to discuss the evidence. Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321; Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857; Simon v. United States, 4 Cir., 123 F.2d 80, 83, certiorari denied 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555; Scritchfield v. Kennedy, 10 Cir., 103 F.2d 467, 471; Montrose Contracting Co. v. Westchester County, 2 Cir., 94 F.2d 580, 583; Pfaff v. United States, 7 Cir., 85 F.2d 309, 311; Morrissey v. United States, 9 Cir., 67 F.2d 267, 278; Kettenbach v. United States, 9 Cir., 202 F. 377, 385; annotations 84 A.L.R. 1172. The comments here were well within the rule.

It is urged that the court failed to define negligence, contributory negligence, proximate cause, ordinary care, and to properly instruct as to elements of damage. It is also contended that the court failed to properly instruct upon the responsibility of one violating the Oklahoma traffic statutes, and on the doctrine of unavoidable casualty. The court did not in so many words give the legal definition of negligence, contributory negligence, proximate cause or ordinary care, which we think was unnecessary under the facts. Proof in the case confined the issues of fact very narrowly. Plaintiff's theory was that defendants' truck failed to negotiate the curve and left highway 277 and proceeded westerly onto highway 5 and struck the plaintiff there. The defendants' theory was that plaintiff unexpectedly drove his pickup truck from behind a school bus onto the left side of highway 277 and immediately in front of the oncoming truck of the defendants, the collision taking place entirely on highway 277; that the collision caused the larger truck to go out of control, continue in a westerly direction, pushing the smaller truck across highway 5 into the borrow pit on the west side. Upon these conflicting theories the court said: "If you find that this defendant in driving this truck was negligent in that he didn't do what an ordinarily prudent person should have done under the same circumstances, if he left the road, left Highway 277 and struck the small truck over on Highway 5, that would constitute negligence, but if you find from the evidence that the driver of this big truck remained on Highway 277, and he drove on the right hand side, and that he had no opportunity to see the small truck until, as he says, it came out suddenly from behind this school bus, and he did everything he could to prevent the accident, but could not, then that would not be negligence, because he had exercised prudence, but on the other hand, if you find he could have seen this plaintiff approaching, and notwithstanding he had a right to the right hand side of the highway, if he saw the plaintiff on the right hand side, he had no right to run into him if he could have avoided it by passing him to the left." While this instruction does not in exact legal terms define negligence, contributory negligence, proximate cause or ordinary care, it covers the facts of this case adequately and eliminates the necessity of further instruction or definition. It leaves to the jury the right to fix the responsibility for the collision and favors neither of the parties. It advises the jury plainly that if from the evidence it believes plaintiff's theory of the case is correct, the verdict shall be for the plaintiff; that if from the evidence it believes defendants' theory of the case is correct the verdict shall be for the defendants. While instructions should in proper cases define these subjects, we think the jury in this case was adequately informed as to the law covering the issues. In cases where the plaintiff relies upon specific acts of negligence, the court's charge may be on specific acts and should confine the issues to them. Old Dominion Stages Inc., v. Connor, 67 App.D.C. 158, 90 F.2d 403; Grand-Morgan Theatre Co. v. Kearney, 8 Cir., 40 F.2d 235; Frizzell v. Omaha St. Ry. Co., 8 Cir., 124 F. 176, 180. In this latter case, in referring to an instruction which confined the issues to the proven facts, the court said, "It was brief, clear, and pointed. It presented to the jury the crucial question which they were to decide, and applied the rules of law which governed the case as it existed to the very issue before the jury, so that their duty was not only made clear, but its discharge was made easy. Such a charge is far more helpful to a jury and much more conducive to a just and speedy administration of the law than abstract propositions of law or dissertations on theories which may be sound, but respecting the application of which to the issues of the case the jury are left in doubt." We think that statement applicable to this instruction.

It is urged by the defendants that the court committed...

To continue reading

Request your trial
36 cases
  • Clegg v. Conk
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 5 Diciembre 1974
    ...Cir. 1970), supra. 17 Cf. Fed.R.Cr.P. 52(b). See Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); Smith v. Welch, 189 F.2d 832 (10th Cir. 1951); State v. Neustadt, 149 F.2d 143 (10th Cir. 1945); National Fire Ins. Co. v. School Dist. No. 68, 115 F.2d 232 (10th Cir. 194......
  • Kanatser v. Chrysler Corp., 4434.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 19 Enero 1953
    ...252, 77 L.Ed. 439; Dommer v. Pennsylvania Ry. Co., 7 Cir., 156 F. 2d 716; Garden City Co. v. Burden, 10 Cir., 186 F.2d 651; Smith v. Welch, 10 Cir., 189 F.2d 832. And, there is nothing in the instructions to justify our independent notice of them in the interest of justice. Smith v. Welch, ......
  • Troupe v. Chicago, D. & G. Bay Transit Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 1 Junio 1956
    ...Aviation and General Ins. Co., 3 Cir., 1954, 212 F.2d 821; Allen v. Nelson Dodd Produce Co., 10 Cir., 1953, 207 F.2d 296; Smith v. Welch, 10 Cir., 1951, 189 F.2d 832. 1 Grand Trunk R. Co. v. Richardson, 91 U.S. 454, 469, 23 L.Ed. 356; Wabash R. Co. v. McDaniels, 107 U.S. 454, 460-461, 2 S.C......
  • Dagnello v. Long Island Rail Road Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 24 Marzo 1961
    ...of Water and Power of City of Los Angeles v. Anderson, 1938, 95 F.2d 577; Cobb v. Lepisto, 1925, 6 F.2d 128. Tenth Circuit: Smith v. Welch, 1951, 189 F.2d 832. D. C. Circuit: Boyle v. Bond, 1951, 88 U.S.App.D.C. 178, 187 F.2d 362; cf. Hulett v. Brinson, 1956, 97 U.S.App.D.C. 139, 229 F.2d 7......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT