Stolte v. Larkin

• Decision Date: 12 March 1940
• Docket Number: 11189.,No. 11188,11188
• Citation: 110 F.2d 226
• Parties: STOLTE et al. v. LARKIN (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

110 F.2d 226 (1940)

STOLTE et al. v. LARKIN (two cases).

Nos. 11188, 11189.

Circuit Court of Appeals, Eighth Circuit.

March 12, 1940.

Charles S. Kidder, of St. Paul, Minn. (Orr, Stark & Kidder, of St. Paul, Minn., on the brief), for appellants.

L. L. Duxbury, of Caledonia, Minn., and F. E. Withrow, of La Crosse, Wis., for appellees.

Before STONE, WOODROUGH, and THOMAS, Circuit Judges.

STONE, Circuit Judge.

These are two personal injury actions, one brought by John H. Larkin for injury to himself, and the other brought by him for injury to Robert Larkin, his ward. The cases arose out of the same occurrence, were consolidated for trial, resulted in verdicts for each plaintiff. From the respective judgments entered thereon these appeals are brought.

Appellants present here three matters. The first of these is denial of motions for directed verdicts (on grounds of insufficiency of proof of negligence of appellant Everett Stolte and conclusive proof of contributory negligence of John H. Larkin); the second has to do with claimed errors in connection with the charge and refusal to charge, and the last concerns exclusion of one piece of evidence.

I. Motions for Directed Verdicts.

The claim that the evidence is insufficient to sustain the finding of negligence of the defendants and the claim that John H. Larkin was guilty of contributory negligence both require a review of the testimony in the light most favorable to plaintiffs.

The collision resulting in the injuries complained of occurred in the forenoon of Sunday, July 1, 1934. The defendant Everett Stolte was driving his father's Nash automobile north on U. S. Highway 61, a paved road 18 feet wide, which runs from LaCrosse, Wisconsin, along the west side of the Mississippi River through the State of Minnesota to St. Paul and Minneapolis. The day was clear, and there was a great deal of traffic on the road. About two miles north of the village of LaCrescent, Minnesota, the road curves to the west and at the same point passes over a slight elevation. The collision occurred at the crest of the elevation when the vehicles were on the curve.

As Stolte proceeded north up the incline he was following a slowly moving car driven by Clarence H. Witt. In the preceding mile Stolte had attempted to pass the Witt car several times, but had been forced back each time by approaching traffic. At the same time the plaintiffs were travelling south on the west side of the highway. John Larkin sat in the front seat of a motorcycle and managed the driving, Robert sat behind him on a seat supported by coiled springs. The Larkins were following about 100 to 150 feet behind a car driven by Russell J. Smith. Shortly before the collision the Smith car and the Larkins' motorcycle were traveling south on the west side of the road at a speed of 45 miles an hour and the Witt car followed by the Stolte car was moving about 30 miles per hour. Just before the collision the Smith car slowed down somewhat to about 25 miles per hour, keeping close to the west edge of the pavement, and the motorcycle came up to within about 30 feet of the rear end of the car. At that time the Witt car passed the Smith car and the Stolte car, about 15 or 20 feet behind Witt, picked up speed and turned immediately to the west behind the Smith car to pass the Witt car ahead. When John Larkin saw the Stolte car cross the black center line into the west lane ahead of him he was about three feet west of that line going about 30 miles an hour. He immediately increased his speed to about 40 miles an hour and attempted to turn to his right to avoid a collision, but it was too late. The motorcycle struck the left front fender of the Stolte car, went over to the right and sideswiped the Smith car. Robert Larkin testified that:

"When the motorcycle and the Stolte car came together I was thrown over the front end of the Smith car about 5 or 6 feet ahead of it.

"Q. Do you know whether you left the motorcycle at once or did the motorcycle come with you? A. The motorcycle came with me for a while until I let go.

"Q. The motorcycle went to the ground did it as it struck the Stolte car? A. Yes.

"Q. And went over toward the south? A. Towards the Smith car.

"Q. And you went headlong over the front of the Smith car? A. Yes.

"Q. Do you know where you landed? A. About 5 or 6 feet in front of the Smith car on the shoulder right off the pavement.

* * *

"Q. Do you have any idea how far you were thrown? A. Well, I was thrown about 5 or 6 feet in front of the car, so I couldn't have been thrown over 10 feet altogether.

"Q. That is at the time of the impact when your brother's motorcycle struck the Stolte car you were thrown about 10 feet?

"Mr. Duxbury: That is contrary to the testimony.

"The Witness: I said after we hit and then I was thrown over the radiator about 5 or 6 feet in front of the Smith car.

"Q. You didn't say 10 feet altogether? A. No, not altogether.

"Q. But after your motorcycle and the Stolte car came together you were thrown over the Smith car? A. Over the radiator of it.

"Q. Your body came to rest about 5 feet ahead of it? A. Yes."

Clarence H. Witt, driver of the Witt car, testified:

"Q. Did you see the actual impact between the motorcycle and the Stolte car? A. I did.

"Q. You saw that? A. Yes sir.

"Q. Where was the front end of the Stolte car at that time? A. Over the center black line and it was over, I would say 4 feet.

* * *

"Q. The impact between the Stolte car and the motorcycle happened towards the rear of your car? A. Towards the rear, yes.

"Q. So the motorcycle came up along side of you didn't it? A. Not alongside of me.

"Q. How did it come up to you? A. You mean meeting it, it was opposite me.

"Q. How close was he to you when you met him? A. Oh he was on his side of the black line, I would say about 2 or 3 feet or something on that order and I was on my side of it."

When the collision occurred the drivers of the Stolte and Smith cars applied their brakes and stopped the cars immediately. It was found that the Stolte car stood across the center line of the road with its front end three or four feet over the line on the west or wrong side thereof. The rear end of the Stolte car had passed the rear end of the Smith car by about two feet.

The contention that the evidence does not support a finding of negligence is based upon the argument (1) that it was physically impossible for the accident to have occurred as claimed by plaintiffs and (2) that the evidence tends to support two wholly irreconcilable propositions.

The evidence is sufficient to authorize submission to the jury. There can be no serious question that the oral testimony given by the two plaintiffs and Mr. and Mrs. Witt makes a clear direct case of negligence if it is taken alone. The gravamen of this contention as to insufficient evidence is really that certain physical facts which are not in dispute are contended as showing that the above oral testimony could not be true and, therefore, the cases should not have been submitted to the jury.

As a rule of law, it is true that where undisputed physical facts are entirely inconsistent with and opposed to testimony necessary to make out a case for the plaintiff, the physical facts must control. No jury can be allowed to return a verdict based upon oral testimony which is flatly opposed to physical facts, the existence of which is thus established. Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 440.

The physical facts here emphasized are, in the main, the position of the two plaintiffs after the accident. Robert Larkin rested several feet in front of and to the right of the Smith car. He was approximately upon the outer edge of the pavement. Some witnesses place him partly on and partly off the pavement, while others seem to think he was more off of the pavement than on. John Larkin was found on the pavement near the left front door of the Smith car.

While these locations of the plaintiffs as a result of the accident may fit in more reasonably with the theory of defendants' evidence as to how the accident occurred, yet the test is not whether we, or the trial Judge, might have been convinced that defendants' theory of the occurrence of the accident was actually true but whether the physical facts make the theory of the plaintiffs so physically impossible that a verdict for plaintiffs could not be sustained. Paul v. Elliot, 9 Cir., 107 F.2d 872; Falstaff Brewing Corp. v. Thompson, 8 Cir., 101 F.2d 301, certiorari denied 307 U.S. 631, 59 S.Ct. 834, 83 L.Ed. 1514; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 440.

The argument assumes that the evidence shows that at the moment of collision Robert Larkin started his flight over the Smith car and came to earth five or six feet in front of it. Since he travelled about 10 feet only and passed over the front end only of the Smith car, the collision, it is argued, occurred near the front end of the Smith car and not at its rear. This would demonstrate that Larkin was the negligent party and was attempting to pass the Smith car when he ran into and against the Stolte car on the east side of the road. The argument is based upon general expressions in the evidence such as "when" the collision occurred Robert Larkin was thrown over the front end of the Smith car, and "then" he was thrown into the air. Robert Larkin's positive and definite statement regarding what occurred, however, is not contradicted. He was asked, "Do you know whether you left the motorcycle at once or did the motorcycle come with you?" and he answered, "The motorcycle came with me for a while until I let go." The jury was not compelled to find any impossibility in this situation.

The second argument is based upon the testimony as to the speed of the cars and their position after they had stopped. The claim is that, since the cars were moving 25 or 30 miles an hour at the time of the collision and the Stolte and Smith cars came to a stop only about two feet apart, the...