United States v. Bohachevsky

• Decision Date: 30 October 1963
• Docket Number: 17215.,No. 17214,17214
• Parties: UNITED STATES of America, Appellant, v. Helen BOHACHEVSKY, Appellee. UNITED STATES of America, Appellant, v. Eugene BOHACHEVSKY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

324 F.2d 120 (1963)

UNITED STATES of America, Appellant, v. Helen BOHACHEVSKY, Appellee.

UNITED STATES of America, Appellant, v. Eugene BOHACHEVSKY, Appellee.

Nos. 17214, 17215.

United States Court of Appeals Eighth Circuit.

October 30, 1963.

Russell J. Blumenthal, Asst. U. S. Atty., Omaha, Neb., Theodore L. Richling, U. S. Atty., Omaha, Neb., on the brief, for appellant.

Lewis R. Leigh, Omaha, Neb., for appellees.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

BLACKMUN, Circuit Judge.

Helen Bohachevsky, age 56, was injured on November 16, 1959, when, as she was crossing an Omaha street, she was struck by an automobile owned by the government and driven by Walter Lundy of the United States Air Force. She and her husband instituted these actions against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). She sought damages for her personal injuries. He claimed damages for the medical expenses and for other items. The cases were consolidated for trial to the court sitting without a jury. Judgments were entered in Helen's favor for her injuries and in her husband's favor for the expenses. The government appeals.

It is conceded that at the time of the accident Airman Lundy was acting "within the scope of his * * * employment" as required by the Tort Claims Act. The parties agree, also, that the substantive law of Nebraska governs the tort aspects of the cases. There is no challenge to the amounts of the judgments.

The only issues before us, then, are whether the district court erred in holding (a) that Lundy was negligent and that his negligence was a proximate cause of the accident, and (b) that Helen was not contributorily negligent to a degree which, under the Nebraska contributory negligence statute, R.R.S.Nebraska 1943 § 25-1151, would bar a recovery.

The accident took place at the intersection of Railroad Street and Madison Avenue. Railroad has four lanes running north and south. Madison runs northwest and southeast. It thus intersects Railroad at an angle. It also has a jog to the south as it crosses Railroad so that its south curb west of the intersection is about on a line with its north curb east of Railroad. A marked crosswalk joins the sidewalks on Madison adjacent to these curbs.

The day of the accident was clear. The streets were unobstructed as to view. Helen, at about 3:30 P.M., had alighted from a bus on her way home from work. She crossed Railroad from the west to go to a grocery store on the east side of that street and near, but north, of the Madison intersection. She made her purchases there and recrossed Railroad to the west. When she had done so, she remembered that she had forgotten to buy fish. She started back to the store.

She testified, through an interpreter, that she then stopped at the west side of Railroad, looked north to her left and saw no car coming, and looked south to her right where she saw one car approaching, another in the distance a block away, and others in the far distance; that she started across the street, walking fast "because it was cold", on the north white line of the crosswalk; that she was hit by Lundy's car going north on Railroad; that he had given no warning; and that she was carrying her handbag, which contained her groceries, by the handle.

On cross-examination Helen testified that she was familiar with the intersection; that it was a busy one in late afternoon; that the car from her right passed in front of her; that when she started to cross "I was looking forward in front of me"; that as she was crossing "I looked just forward"; that she did not see the Lundy car "at the last moment of the impact"; that she was past the center of the street when she was hit; that she was walking "pretty fast" but not running; that she was in a hurry to get to the store and back to fix supper; and that she was headed "directly to the store" but not to its door.

Lundy testified that the car he was driving was new and in good mechanical condition; that he had checked its brakes that morning; that he was a qualified driver; that at the time of the accident he was going north on Railroad on the inside lane at 25 to 30 miles per hour; that the speed limit there was 35; that he had his car under control and was watching his driving; that there were vehicles going north ahead of him "quite a ways up" and some behind him; that Helen "come across from behind" a southbound vehicle; that he first saw her when "I was right by the sidewalk"; that she was then 15 feet north of the north edge of the crosswalk; that she had her head down and a sack of groceries "in her arms" and "was looking down and straight ahead"; that he was about 25 feet from her when he first saw her; that he jammed on the brakes; that his left front fender struck her before he stopped and when he was going between 3 and 5 miles per hour; and that the car moved about 3 or 4 feet after the impact.

Lawrence R. Moore, a witness called by the government testified that he was driving approximately 70 feet behind Lundy at about 30 miles per hour; that he was neither gaining nor falling behind the air force vehicle; that he saw the plaintiff running across Railroad; that she was looking down at the street directly in front of her; that he did not see her look to the north or south; and that she was beyond the marked crosswalk and headed for the store. On cross-examination he stated that he saw no cars coming from the north to the south and that he watched Helen go all the way across the street.

The government's motions for dismissals made at the close of the plaintiffs' cases and again at the close of all the evidence were denied. The court decided the cases from the bench with oral findings and conclusions which, to the extent pertinent here, are set forth in the margin.¹

1. The issue of Lundy's negligence. The parties respectively advance many of the general negligence principles which have been adopted by the Nebraska court. We necessarily recognize these. Thus, in a Nebraska negligence action the plaintiff has the burden of proof as to the existence of negligence and as to proximate cause. Sipprell v. Merner Motors, 164 Neb. 447, 82 N.W.2d 648, 653 (1957). "Negligence is never presumed, and cannot be inferred from the mere fact that an accident happened". Bixby v. Ayers, 139 Neb. 652, 298 N.W. 533, 539 (1941). "Negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do". McGraw v. Chicago, R. I. & P. Ry., 59 Neb. 397, 81 N.W. 306 (1899); Reed v. Metropolitan Util. Dist., 173 Neb. 854, 115 N.W.2d 453, 456 (1962). "* * * Where one is confronted suddenly with an emergency and is required to act quickly, he is not necessarily negligent if he pursues a course which mature reflection or deliberate judgment might prove to be wrong". Belik v. Warsocki, 126 Neb. 560, 253 N.W. 689, 691 (1934); Andelt v. Seward County, 157 Neb. 527, 60 N.W.2d 604, 607 (1953). But if the situation is "one of his own making" and "brought on by his own actions and omissions", he is not relieved of his duty to the injured person by having created an emergency situation. Schwartz v. Hibdon, 174 Neb. 129, 116 N.W.2d 187, 192 (1962).

A Nebraska statute, R.R.S.1943 § 39-751,² fixes right-of-way responsibilities as between a vehicle operator and a pedestrian crossing a street within a business or residence district. Although the fact a pedestrian crosses a street at a point other than at the crosswalk is not of itself negligence sufficient to defeat a recovery, one doing so is charged with the exercise of a greater degree of care than one who crosses at the crosswalk. He must keep a constant lookout in all directions for his own safety. Trumbley v. Moore, 151 Neb. 780, 39 N.W.2d 613, 616 (1949); Jarosh v. Van Meter, 171 Neb. 61, 105 N.W.2d 531, 538-539, 82 A.L.R.2d 714 (1960). In a case where the plaintiff crossed a street at a point which was not a pedestrian crossing, the Nebraska court said:

"In the instant case the plaintiff, according to his own testimony, looked in both directions before he started across the street. After he started across, he says, he continued to look north but never again looked to the south. As he approached the center of the street, he should have looked to the south, particularly where it was the more likely source of danger. It was negligence of such a character as will bar a recovery as a matter of law." Carman v. Hartnett, 161 Neb. 576, 74 N.W.2d 352, 355 (1956).

Doan v. Hoppe, 133 Neb. 767, 277 N.W. 64, 66 (1938). Nevertheless, "It is, with exceptions not applicable to this case, negligence for a motorist to drive a motor vehicle on a public highway * * * in such manner that it cannot be stopped, or its course changed or varied in time to avoid a collision with an obstruction discernible within the range of his vision ahead. Nothing will excuse his failure to see what is plainly in sight." Armer v. Omaha & Council Bluffs St. Ry. Co., 151 Neb. 431, 37 N.W.2d 607, 612 (1949); Ricker v. Danner, 159 Neb. 675, 68 N.W. 2d 338, 344 (1955). Even where a motorist has the right of way but the situation is such as to indicate to the mind of an ordinarily prudent person that to proceed would probably result in injury to the pedestrian, it is his duty to exercise ordinary care to prevent the injury. Doan v. Hoppe, supra, p. 67 of 277 N.W.; Watters v. McPherson, 141 Neb. 607, 4 N.W.2d 605, 608 (1942).

The review we have made above of the evidence shows without contradiction that Lundy was driving the automobile at a speed lower than the maximum limit; that the car was not mechanically defective; and that, nevertheless, Mrs. Bohachevsky was hit. Certainly there is no evidence to the contrary. Beyond this, however, the record also discloses, we think, only the common situation of...