United States v. Gallops, 14349.

• Decision Date: 09 September 1953
• Docket Number: No. 14349.,14349.
• Citation: 207 F.2d 48
• Parties: UNITED STATES v. GALLOPS. GALLOPS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

207 F.2d 48 (1953)

UNITED STATES v. GALLOPS.

GALLOPS v. UNITED STATES.

No. 14349.

United States Court of Appeals Fifth Circuit.

September 9, 1953.

Jack J. Gautier, U. S. Atty., Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., for the United States.

Vincent P. McCauley, Columbus, Ga., for Homer Gallops.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

BORAH, Circuit Judge.

This suit brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346 et seq., 2671 et seq., is for damages resulting from a collision between an automobile driven by plaintiff and an M-26 tank belonging to the United States Army and driven by an Army private.

Plaintiff's complaint alleged in general terms that he sustained serious personal injuries and property damage as the result of the collision which was proximately caused by the negligence of the employee or employees of the defendant acting in line of duty and within the scope of their employment (1) in operating an instrumentality of war without due regard for the rights of others using the highway (2) in failing to place, or to properly place road guards to warn vehicles of the proximity of a dangerous instrumentality of war and (3) in failing to place warning signals or take other measures to caution users of the state highway that tanks might be crossing the highway at the point of collision.

The Government's answer denied that it was guilty of negligence in the particulars alleged and pleaded the negligence of plaintiff as being the sole and proximate cause of the collision.

The District Judge to whom responsibility for the trial of the facts is given under the statute found for the plaintiff and gave judgment in the sum of $5,000. He found that plaintiff was somewhat negligent in not keeping a lookout ahead and discovering the presence of the tank on the highway and observing the warning given by the lookout and that the officers in charge were guilty of negligence in not posting lookouts on either side of the convoy at a distance sufficiently far in each direction to warn persons on the highway of its use and occupancy by the army tanks. He further found that both the plaintiff and the defendant's agents were negligent, but that the defendant's negligence far exceeded the negligence of the plaintiff, and applying the Georgia doctrine of comparative negligence and apportionment of damages¹ reduced the amount of plaintiff's recovery accordingly. In reaching the amount of the award the District Judge concluded that he could not legitimately deduct the amount of sick and annual leave compensation which the Government paid to plaintiff during a part of the time that plaintiff was not working due to his injuries.

The Government and the plaintiff have each appealed from the judgment.

The Government attacks the judgment on two grounds. As its first and most important ground it is claimed that the evidence conclusively shows that the plaintiff was negligent and that the Government was not negligent in any respect, and in the alternative, that the evidence failed to show that the negligence of the Government exceeded that of plaintiff. In support of its contention the Government sets out in its brief a summary of the evidence as it claims the...