Starns v. Jones
| Decision Date | 27 August 1974 |
| Docket Number | Nos. 73-1767 and 73-1768,s. 73-1767 and 73-1768 |
| Citation | 500 F.2d 1233 |
| Parties | Leberta STARNS, Administratrix of the Estate of W. W. Starns, a/k/a Jim Starns, Deceased, Appellant, v. Benton JONES and Samuel L. Garst, Appellees. Alice Jean BURNEY, Administratrix of the Estate of Robert W. Burney, Deceased, Appellant, v. Benton JONES and Samuel L. Garst, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edward F. Fogarty, Omaha, Neb., for appellant.
Edward P. Welch, Omaha, Neb., for appellees.
Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit judges.
On July 14, 1969, W. W. Starns and Robert W. Burney, his passenger, were killed when Starns' Volkswagon collided with a school bus, owned by Benton Jones and driven by his employee, Samuel Garst. The school bus, operated as part of a wheat-harvesting convoy, had been heading north from Kansas into Nebraska with a trailer carrying a combine header in tow. As the bus traveled north on Highway 61 in Perkins County, Nebraska, it approached the intersection of Highway 23 which was protected by stop signs. Garst had attempted to brake as he neared the signs but both his hydraulic braking system and his emergency hand brake failed. The bus and trailer proceeded through the intersection, colliding with the Starns VW, which had been traveling east on Highway 23.
The widows of Starns and Burney, as administratrices of their respective estates, each commenced a wrongful death action against Jones and Garst in the United States District Court in Nebraska. 1 Plaintiffs ultimately alleged 13 specific counts of negligence against defendants, who denied the charges generally and asserted sudden and unexpected brake failure and Starns' contributory negligence as defenses. The cases were consolidated for trial and tried to a jury before Judge Richard Dier. The jury returned verdicts in favor of both defendants and against both plaintiffs; following the entry of judgments thereon, plaintiffs moved for a new trial. These motions were denied by Judge Warren Urbom, to whom the case was assigned after Judge Dier's death. Plaintiffs appeal, and having considered each of the six issues presented for review, we affirm.
Under Nebraska law, 39-773 (1968), every motor vehicle must be equipped with adequate brakes, including two separate means of applying the brakes, maintained at all times in good working order; moreover, all hand, parking, or emergency brakes must be capable of stopping vehicles weighing over 7,000 pounds within a maximum stopping distance of 65 feet, from a speed of 20 miles per hour. Unbeknownst to Garst, who for the first time attempted to use the hand brake for an emergency stopping situation, the hand brake on the school bus was extremely oily and thus ineffective for stopping the bus, which failed to stop after application of the hydraulic brakes.
Both parties agree that the general rule in Nebraska 2 is that a violation of a motor vehicle statute is evidence of negligence to be submitted to the jury and does not constitute negligence as a matter of law. See, e.g., Egenberger v. National Alfalfa Dehydrating & Milling Co., 164 Neb. 704, 83 N.W.2d 523, 531 (1957). Appellants, however, maintain that the violation of the Safe Brake Statute in the instant case was sufficiently egregious to have compelled a directed verdict in their favor.
We are not persuaded. Appellants' references to cases from other jurisdictions 3 and other factual contexts 4 contain no authority for departing from the rule articulated in Ziskovsky v. Miller, 120 Neb. 255, 231 N.E. 809 (1930), wherein the Nebraska Supreme Court specifically held that a violation of a prior version of the Safe Brake Statute, 'while * * * not negligence per se, * * * was a matter for the jury to take into consideration with all the other facts and circumstances in determining whether the defendant was guilty of negligence.' 231 N.W. 811. The Nebraska Supreme Court has consistently adhered to this general 'evidence of negligence' rule, 5 reiterated as recently as 1973 in Fleischer v. Rosentrater, 190 Neb. 219, 207 N.W.2d 372 (1973). 6 We find no error in the submission of this evidence to the jury.
In automobile negligence cases the Nebraska courts afford either party the opportunity of invoking the 'Sudden Emergency Doctrine':
Watson Bros. Transportation Co. v. Jacobson, 168 Neb. 862, 97 N.W.2d 521, 525 (1959), quoting Roby v. Auker, 149 Neb. 734, 32 N.E.2d 491, 495 (1948).
The defendants in this case did invoke that doctrine, and appellants now assign error to the trial court's allocation of the burden of proof on that issue.
We agree with the trial court that the burden of proving negligence was on plaintiffs. While it was undisputed that the brakes on the school bus had failed, the plaintiffs were nonetheless required to persuade the jury that the brake failure was attributable to defendants' negligence and that the collision was proximately caused by such negligence. Where the Sudden Emergency Doctrine is successfully invoked, it does not provide an affirmative defense for a driver whose negligence has already been established; rather it precludes the opposing party from establishing a case of negligence in the first place. See Davis v. Dennert, 162 Neb. 65, 75 N.W.2d 112, 121 (1956), quoting Belik v. Warsocki, 126 Neb. 560, 253 N.W. 689, 691 (1934):
We conclude that where, as here, the trial court simply instructed the jury that plaintiffs had the burden of proving one or more of the specifications of negligence alleged, no error occurred. 7
Appellants contend that any emergency which might have occurred was not a sudden one since there was evidence that oil had been accumulating on the hand brake over a long period of time, a situation arguably brought about by defendants themselves. Thus appellants claim that the jury should not have been given a 'sudden emergency' instruction.
Appellants' argument misses the mark. The focus of the Sudden Emergency Doctrine is not the suddenness with which the emergency situation developed but rather the suddenness with which a driver became aware thereof. The doctrine explicitly envisions a driver 'suddenly confronted by an emergency, requiring instant decision . . ..' Watson Bros. Transportation Co. v. Jacobson, 168 Neb. 862, 97 N.W.2d 521, 525 (1959). At trial, the evidence of sudden brake failure was coupled with evidence of the limited responses available to defendant Garst, who testified that west of the intersection on Highway 23 a combine crew obstructed his view to the left, while east of the intersection another rig from the same wheat-harvesting convoy blocked his vision to the right. This evidence of the limited options open to Garst upon his discovery of the brake failure is precisely the type of evidence that a sudden emergency instruction is designed to explain to the jury.
In addition, Judge Dier's instruction, a standard one approved by the state supreme court, 8 informed the jury that the Sudden Emergency Doctrine would not apply to a party who had caused the emergency situation by his own negligence. Where, as here, there was evidence that the owner of the bus had had it completely overhauled only two months before the accident, we find that the challenged instruction properly presented a factual question of defendants' negligence to the jury. Moreover, by its language, the instruction afforded the benefit of the Sudden Emergency Doctrine not only to defendants but also to plaintiffs, who were likewise confronted by a sudden emergency when the bus proceeded through the intersection without stopping.
At the trial of this case, depositions taken in a related lawsuit pending in Kansas were read into evidence by counsel for the plaintiffs. In the Kansas case the same plaintiffs had filed suit against one Loren Bonham, a repairman who had completely overhauled the school bus, including both sets of brakes, approximately two months before the collision. 9
Once plaintiffs had injected the subject of the Kansas litigation into the trial of the instant case, the defense counsel suggested to the jury, for impeachment purposes, that plaintiffs could not consistently hold liable the driver and owner of the bus as well as the repairman. On appeal, plaintiffs-appellants contend that although the suit against the repairman was dismissed during the course of the trial of the instant case, the jury was left with the prejudicial impression that plaintiffs were seeking double recovery by initiating two lawsuits. Plaintiffs had requested a curative instruction to the effect that the Kansas case had been dismissed, but Judge Dier refused.
Without reaching the question whether this...
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