Solomon Dehydrating Company v. Guyton

Citation294 F.2d 439
Decision Date31 August 1961
Docket NumberNo. 16584.,16584.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
PartiesSOLOMON DEHYDRATING COMPANY, Incorporated, Appellant, v. Clarence R. GUYTON, Appellee, Central Greyhound Lines, Incorporated, and The Greyhound Corporation, Appellees.


Charles B. Paine, Grand Island, Neb., Kenneth H. Dryden, Kearney, Neb., on the brief, for appellant.

Warren C. Schrempp, Omaha, Neb., Henry C. Rosenthal, Jr., Omaha, Neb., on the brief, for appellee Clarence R. Guyton.

Lyle E. Strom, Omaha, Neb., James J. Fitzgerald, Jr., Omaha, Neb., on the brief, for appellee Greyhound Corporation.

Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.

BLACKMUN, Circuit Judge.

This diversity action arises out of a bus-truck collision which took place about 1:45 a. m., July 29, 1959, on U. S. Highway No. 30 three and three-quarter miles east of Kearney, Nebraska. The vehicles concerned were an eastbound Greyhound Scenicruiser bus traveling the highway on a regular run and a northbound 2-ton truck endeavoring to cross the artery. The night was clear and the pavement was dry.

Clarence R. Guyton, age 60, was the bus driver. The Greyhound Corporation was the owner of the bus. Arnold Fisher was the truck driver. Solomon Dehydrating Company, Incorporated, was the owner of the truck. Fisher was Solomon's employee; he was working on the night in question and was driving the truck in the course of his employment.

Guyton sued Solomon for personal injuries sustained in the accident. He joined Greyhound as a defendant, as he was required to do by § 48-118, 1960 Reissue of Volume 3A, Revised Statutes of Nebraska of 1943, in order to determine his employer's subrogation rights under the Nebraska Workmen's Compensation Law. Solomon filed a counterclaim against Guyton and a cross-claim against Greyhound for damages to its truck. Greyhound filed a cross-claim against Solomon for damages to its bus and for loss of its use. All these claims were based upon the alleged negligence of Fisher and Guyton, respectively. Jury verdicts of $74,132.63 in favor of Guyton against Solomon and of $16,356.77 in favor of Greyhound against Solomon were returned. The jury also rendered verdicts in favor of Guyton and Greyhound on Solomon's counter and cross-claims. Judgments were entered accordingly. Solomon has appealed.1

We have often observed that no useful purpose is served in setting forth in detail the evidence in these personal injury cases arising out of automobile accidents. Berlo Vending Co. v. Massey, 8 Cir., 260 F.2d 832, 833; Johnson v. Hill, 8 Cir., 274 F.2d 110, 112. We therefore refer to the facts here only as it becomes necessary so to do in considering the issues before us.

The appellant urges as error:

1. The insufficiency of the evidence. This is directed both to the submission to the jury of claimed specific acts of negligence on the part of Fisher and to the trial court's denial of Solomon's motion for judgment notwithstanding the verdicts. The appellant's argument centers primarily on what it regards as inconsistencies within the plaintiff's evidence of such degree and of such contrariety to undisputed physical facts as to require the evidence to be disregarded.

We are aware, as Solomon urges, (a) that the fact Fisher drove the truck onto the highway does not, standing alone, establish negligence on his part, Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482, 491; (b) that

"Where a plaintiff, without reasonable explanation, testifies to facts materially different concerning a vital issue than had previously been testified to by him under oath in another action, the change clearly being made to meet the exigencies of the pending action, the evidence is discredited as a matter of law and should be disregarded". Gohlinghorst v. Ruess, 146 Neb. 470, 20 N. W.2d 381.

Rahfeldt v. Swanson, 155 Neb. 482, 52 N.W.2d 261, 266; Carranza v. Payne-Larson Furniture Co., 165 Neb. 352, 85 N.W.2d 694, 697; and (c) that testimony which is in conflict with undisputed physical facts is not entitled to credence, Dodds v. Omaha & C. B. St. Ry. Co., 104 Neb. 692, 178 N.W. 258, 261; Varnum v. Union Pac. R. Co., 112 Neb. 340, 199 N.W. 503, 505; Hessler v. Bellamy, 128 Neb. 571, 259 N.W. 514, 515; United States v. Harth, 8 Cir., 61 F.2d 541, 544; Liggett & Myers Tobacco Co. v. De Parcq, 8 Cir., 66 F.2d 678, 683, certiorari denied 298 U.S. 680, 56 S.Ct. 947, 80 L.Ed. 1400; Jacobson v. Chicago, M., St. P. & P. R. Co., 8 Cir., 66 F.2d 688, 693. But we are also aware (a) that where there is a reasonable dispute as to what the physical facts show, conclusions to be drawn therefrom are for the jury, Kroeger v. Safranek, 165 Neb. 636, 87 N.W.2d 221, 224-225, and (b) that in a situation such as the one before us

"We are required to determine whether there is any substantial evidence upon which the verdicts for the plaintiffs could properly be based. For the decision of that question, we must assume as established all the facts that the evidence supporting the plaintiffs\' claims reasonably tends to prove and that there should be drawn in the plaintiffs\' favor all the inferences fairly deducible from such facts. * * * We must also give effect to the rule that issues that depend upon the credibility of witnesses, and the effect or weight of evidence are to be decided by the jury". Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 439.

See, also, Hanson v. Ford Motor Co., 8 Cir., 278 F.2d 586, 596.

The claimed variances in Guyton's own testimony are differences between his testimony at the trial and that given on two depositions before trial. One of the depositions was taken by the State for a justice court proceeding it brought against Fisher; the other was taken on behalf of Solomon in the present action. Disparities between Guyton's testimony and that of other witnesses on his behalf are also pointed out. These all have to do in the main with (a) the location of the truck when Guyton first saw it; (b) the distance between the bus and the truck when Fisher stopped at the stop sign; (c) the point where Guyton first applied his brakes; (d) the point where the bus and a westbound transport vehicle passed each other on the highway; (e) the position of the transport (the existence of which Fisher denied) when its driver saw the truck stop; (f) the speed of the truck; and (g) the place of impact. A chart of these differences in the evidence was included in the appellant's brief; that brief also sets forth at length mathematical interpretations of the testimony and attempts to prove the impossibility of the accident having taken place if parts of the testimony are true. We have studied the chart and these computational arguments.

While a mathematical approach is often forceful and is sometimes persuasive, it is not convincing here. We have in mind that this accident took place in very early morning hours; that it was dark at the time; that distances at night may be difficult to estimate with complete accuracy; that the vital events, namely, the passing of the bus and the transport, the emergence of the truck onto the highway, the application of the brakes of the bus, its swerve to the north, and the speed of the truck, all took place or required observation within passing seconds; and that, where time and area are compressed, differences of only a few miles per hour in speed or of only a few feet in distance lead to vividly contrasting results.

While there are discrepancies here (and, for that matter, in Fisher's testimony, too), there is also corroborating testimony. We regard the appellant's contentions on this point as material essentially appropriate for an argument to a jury rather than to an appellate court which is confined, as to this aspect of the case, to the limits specified by the Elzig and Hanson cases cited above. Any disparity in testimony here, it seems to us, is not of that degree of offensiveness which requires disbelief as a matter of law. We feel that it is of the nature and kind so often encountered in the normal give and take of a vigorously contested lawsuit concerned with the crowded events of a few short moments. We may appropriately assume that these variances were artfully argued to the jury. The factual situation is obviously different from those presented by Gohlinghorst and its line of cases, supra, urged upon us by the appellant. The Nebraska court has described and distinguished its conclusions in those cases as being grounded upon estoppel elements and the conviction that the plaintiff's testimony if permitted would result in a mockery of justice. Kipf v. Bitner, 150 Neb. 155, 33 N.W.2d 518, 523-524; Angstadt v. Coleman, 156 Neb. 850, 58 N.W.2d 507, 513-514; Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65, 74-75. We feel that the situation here is one presenting nothing more than a reasonable dispute about physical facts and that, to the extent testimony discrepancies do exist, they are in the nature of admissions for the jury to consider and are thus controlled by the Kipf, Angstadt and Kirchner cases rather than by Gohlinghorst.

We readily conclude that the evidence was sufficient and appropriate to take the questions of Fisher's negligence to the jury.

2. The exclusion of the testimony of Solomon's expert witness Weiland concerning the speed of the bus. Weiland was a consulting engineer and professor of mechanical engineering at the University of Nebraska. That he was "eminently qualified in his field" was recognized by the trial court. He had examined neither the accident scene nor the vehicles involved. He testified, however, that he had seen the exhibits and heard the trial testimony and that he is able to calculate the speed of vehicles just prior to collision if he has examined the exhibits and knows the type of road surface, the length of skid marks, the distance the vehicles traveled after the collision, the weights of the vehicles and the...

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