United States v. First-Citizens Bank & Trust Co.

• Decision Date: 09 November 1953
• Docket Number: No. 6654-6658.,6654-6658.
• Citation: United States v. First-Citizens Bank & Trust Co., 208 F.2d 280 (4th Cir. 1953)
• Parties: UNITED STATES v. FIRST-CITIZENS BANK & TRUST CO. (three cases). UNITED STATES v. LIVESAY. UNITED STATES v. WILSON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

208 F.2d 280 (1953)

UNITED STATES v.FIRST-CITIZENS BANK & TRUST CO. (three cases).

UNITED STATES v.LIVESAY.

UNITED STATES v.WILSON et al.

Nos. 6654-6658.

United States Court of Appeals Fourth Circuit.

Argued October 20, 1953.

Decided November 9, 1953.

Thomas F. Ellis, Asst. U. S. Atty., and Charles P. Green, U. S. Atty., Raleigh.N. C., for appellant.

R. E. Whitehurst, New Bern, N. C., George H. McNeill, Morehead City, N. C., William E. Rollow, Washington, D. C., and George B. Riddle, Jr., New Bern, N. C. (Hamilton & McNeill, Morehead City, N. C., Walter E. Hoffman, Norfolk, Va., Hugh T. Fullerton and Pillsbury, Madison & Sutro, Washington, D. C., on brief), for appellees.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and WILKIN, District Judge.

PARKER, Chief Judge.

These are appeals in five cases brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346,2671 et seq., and heard together in the court below.They were brought to recover damages on account of the death of three persons and the injury of three others which resulted from the collision of an automobile driven by Commander Dave Johnston, Jr., with a United States Marine Corps wrecker which had been left standing unlighted on a highway in the night time.From judgments in favor of the plaintiffs in all five of the cases the United States has appealed asking reversal on the ground that the negligence of Commander Johnston in failing to see and avoid the wrecker was the sole proximate cause of the disaster.The facts, as to which there is little dispute are thus stated by the trial judge in his memorandum:

"The collision occurred at about 12:30 a. m. on N. C. Highway between Swansboro and Bogue in fair weather.In the car operated by Commander Johnston were his wife, Anne Johnston, Dr. John D. Wilson, a Navy Lieutenant (Junior Grade), Mrs. Nancy E. Wilson, his wife, Franklin Carter Livesay, a Navy Lieutenant, and Mrs. Frances M. Livesay, his wife.The Naval officers, Johnston, Wilson and Livesay, were on leave from their ship, which was in harbor at Morehead City, N. C., and the party was returning to Morehead City from Camp LeJeune, proceeding in an easterly direction, when the accident occurred.The Marine Corps wrecker, driven by Christafaro, with Trammell as passenger, had been on its way from LeJeune to Morehead City, also proceeding easterly, when about thirty minutes before the accident, due to engine trouble or mechanical defect, it became necessary for the operators to stop it in the right-hand (south) lane of the highway.The marines in charge did their utmost to get the wrecker off the hard surface portion of the highway, but were unable to do so, and at the moment of impact the wrecker\'s rear dual wheels were located a foot or two to the right (south) of the center line of the highway, almost completely blocking the right-hand lane and the path of Johnston\'s automobile.The wrecker was equipped with lights as follows: two headlights, two tail-lights, two spot lights mounted on the cab facing to the rear, and two blackout lights.All lights were in good working condition and were operated by switches — but none of the lights was burning at the time of the collision and for a period before.No flares or lanterns were displayed to the rear.

"The highway was surfaced with dull black asphalt, twenty-two feet in width; the roadway was not lighted, but it was a moonlight night and the visibility was good; the surface of the highway was dry; there was no curve in the road which might have affected the view of Commander Johnston; along the south side of the hard surface for several hundred yards both to the east and to the west of the wrecker there was a level shoulder about ten feet in width; the wrecker was painted olive drab and the rear axle housing was covered with grease and dust; the wrecker\'s tires were black; it was not equipped with rear reflectors.

"While being operated by Commander Johnston at a lawful and reasonable rate of speed on the proper (south) side of the highway, with proper headlights burning, the automobile collided with the stalled or stationary wrecker, the front of the automobile striking the rear end of the wrecker and causing the injuries and deaths in question.As the Johnston automobile approached the wrecker from the west, a second automobile approached from the east at about the same relative distance from the wrecker, but this automobile came to a stop about 75 yards before reaching it, and the head lights dimmed.

"The Johnston car was entirely under his control and no one of the passengers had any part in or control over the manner or way in which he drove.All six occupants suffered personal injuries, and Commander Johnston, his wife.Anne Johnston, and Frances M. Livesay died as a result of their injuries."112 F. Supp. 116.

To this it should be added that the wrecker, the body of which stood about four feet above the ground, was stopped a little to the east of the low point in a slight dip or depression in the highway; that the Johnston car was approaching from the west down an incline and with its lights turned down; and that the lights had been turned down as the result of signals exchanged between it and the car approaching from the east.With respect to the charge of negligence on the part of Johnston, the judge made the following finding:

"I do not find, either as a matter of law or fact, that he(Johnston) failed to exercise the care of a person of ordinary prudence.It is plain, of course, that the facts in each case present a question unique to that particular case.In the case of Morgan v. Cook, (236 N.C. 477, 73 S.E.2d 296) as well as in some of the other cases of like import, it appeared affirmatively that the driver continued to drive for some substantial time after being blinded by the lights of an oncoming vehicle.Here, the driver was killed in the accident and there is no evidence on this question.It is reasonable to believe that Johnston failed to see the wrecker in time, but whether such failure was due to the lights of the approaching automobile, or to some other cause beyond his control, in the exercise of due care, cannot be determined.It seems to me that it would be pure speculation to say that there was a failure to use due care on the part of Johnston."

There can be no question, of course, as to the negligence of those in charge of the wrecker, who left it standing on the highway in the night time without the lights and warning signals required by the North Carolina statutes, chapter 20 General Statutes of North Carolina sections 134and161.It is equally clear that such negligence must be deemed the proximate cause of the wreck and the resulting...