United States v. Springfield

• Decision Date: 31 March 1960
• Docket Number: No. 17873.,17873.
• Citation: 276 F.2d 798
• Parties: UNITED STATES of America, Appellant, v. Mrs. Josephine SPRINGFIELD et al., Appellees. UNITED TRANSPORT, INC., Appellant, v. UNITED STATES of America, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

276 F.2d 798 (1960)

UNITED STATES of America, Appellant, v. Mrs. Josephine SPRINGFIELD et al., Appellees.

UNITED TRANSPORT, INC., Appellant, v. UNITED STATES of America, Appellees.

No. 17873.

United States Court of Appeals Fifth Circuit.

March 31, 1960.

John L. Burke, Jr., Sp. Asst. to U. S. Atty., Dallas, Tex., Paul N. Brown, U. S. Atty., Tyler, Tex., for appellants.

Royal H. Brin, Jr., Dallas, Tex., Robert S. Vance, Bun L. Hutchison, Texarkana, Tex., Hobart Price, Dallas, Tex., Strasburger, Price, Kelton, Miller & Martin, Dallas, Tex., of counsel, for appellees.

Before RIVES Chief Judge, and HUTCHESON and TUTTLE, Circuit Judges.

RIVES, Chief Judge.

This case arises out of a highway accident that occurred on U. S. Highway No. 82 in Bowie County, Texas, on December 27, 1956. The accident involved three vehicles: a five-ton dump truck, a grain truck, and a Ford passenger automobile. The dump truck was owned by the United States and was being driven by one Rufus Springfield, an employee of United Transport, Inc., under a contract between the United States and United Transport whereby United Transport had agreed to transport the truck from Red River Arsenal, Texarkana, Texas, to State Arsenal, Topeka, Kansas. The grain truck was owned by R. L. Willard and was being driven by Hugh Stone. The Ford automobile was owned by Dwight Wood and was being driven by his wife, Marie Wood.

Immediately prior to the accident, the dump truck was proceeding in an easterly direction on Highway No. 82, the grain truck was proceeding in a westerly direction, on the same highway, and the Ford was also proceeding in a westerly direction, following along immediately behind the grain truck. The speed of the dump truck was estimated at 40 to 50 miles per hour, while the speed of the grain truck and that of the Ford were somewhat less.

As the two trucks approached each other the dump truck moved over into the westbound lane and struck the trailer of the grain truck a glancing blow. A collision then followed between the dump truck and the Ford. The driver of the dump truck and the driver and two other occupants of the Ford were killed instantly. A fourth occupant of the Ford sustained permanently incapacitating injuries.

Actions were commenced under the Federal Tort Claims Act¹ to recover damages from the United States on the theory that the accident was caused by its negligence in either creating or failing to discover and correct a defect in the dump truck. The United States filed an answer denying negligence on its part and a third-party complaint against United Transport, Inc., alleging that the accident was caused by the negligence of the driver rather than by a defect in the truck. The third-party complaint sought recovery from United Transport for damages to the dump truck as well as indemnity with respect to any judgment rendered in favor of the original plaintiffs. United Transport answered, denying negligence on the part of its driver, and counterclaimed for $5,434.83, the amount owed by the United States for services rendered under the contract between the parties but which had been withheld pending the outcome of this litigation. The cases were tried to the court and resulted in determinations adverse to the contentions of the United States in every instance except as to United Transport's counterclaim, which was dismissed on the ground that the United States had not consented to suit. The United States appealed from the adverse portions of the judgment; United Transport appealed from the dismissal of its counterclaim.

The principal controversy at the trial related to the right front wheel of the dump truck. It is undisputed that that wheel came off the truck either before the collision or at the moment thereof. The Government's theory was that the wheel came off at the time of the collision as a result of the impact and that, consequently, the losing of the wheel could not have caused the accident. The appellees' theory, on the other hand, was that the wheel came off prior to the collision; that, after the wheel became disengaged, it passed back under the rear of the right fender and the running board of the truck, thus lifting up the right side of the truck; and that this caused the truck to lurch over into the westbound lane and collide with the oncoming vehicles. Both sides to the dispute placed their reliance primarily upon the testimony of expert witnesses, the basic facts being largely undisputed. The trial judge chose to accept the version of the occurrence presented by the appellees' expert. The principal question presented on this appeal is whether that version is so inherently incredible that the findings of fact predicated thereupon must be rejected as clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.

The Government's attack upon the appellees' theory of the accident is two-pronged: first, it contends that the accident could not possibly have occurred as opined by appellees' expert because it would be physically impossible for a truck constructed as was the truck involved in this case to run over its own loose front wheel and be thrown in the direction away from that loose wheel; and, secondly, it contends that, even were it to be assumed that such an occurrence is theoretically possible, the conclusion that it did in fact occur in this particular case is untenable because such a conclusion is entirely inconsistent with the undisputed facts. These two contentions will be treated separately.

The contention that the appellees' theory of the accident is an impossible one rests upon three sub-contentions. The first of these is that, since the front fender is located further from the truck's right wheel than the truck's axle is from the highway, if the right wheel did become disengaged while the truck was in motion, the axle would fall to the highway and pull the truck to the right before the wheel reached the fender. We do not think that such a conclusion is necessarily correct. It is undisputed that when the right wheel came off it did so suddenly and with considerable force. That is evidenced by the fact that a part of the velocity housing to which the wheel was attached was broken off and remained with the wheel. This force doubtless reacted on the wheel in some manner and it is possible that it threw the right wheel backward against the rear of the right front fender. That this could happen before the axle fell to the highway, even though the distance between the axle and the highway was less than that between the wheel and the fender, seems clear. The force of inertia acting upon the axle would prevent its falling directly to the highway and increase considerably the distance it would have to travel.

The Government's second argument on impossibility is that the right, front fender and running board would have collapsed rather than have supported the truck as appellees theorize. An examination of the record, however, does not support this argument. The appellees' expert witness testified that the fender was made of metal sufficiently heavy to support the truck momentarily and that the running board, enforced as it was with brackets, could do likewise. The only contrary testimony was that neither of these parts was designed to support the truck. On that state of the record, this Court certainly cannot hold that the implied finding that the fender and running board could momentarily support the truck is clearly erroneous.

Thirdly, the Government contends that appellees' theory of the accident is impossible because, even if the right wheel did get under the right fender and lift the truck, it would certainly pull the truck to the right rather than throw it to the left. Clearly, if all other factors remain equal, the lifting of the right side of the truck would cause it to veer to the left. The Government's argument is that the right wheel would have slowed down to such an extent that it would tend to brake the right side of the truck enough to more than compensate for this tendency to the left. The extent of this braking action would be roughly proportionate to the reduction in the speed of the right wheel. There is nothing in the record to indicate how much the speed of the right wheel would have been reduced. The rear of the right front fender, where under the appellees' theory contact with the wheel was made, sloped gently down and back. While it may be assumed that some friction would have accompanied this contact which would tend to decrease the speed of the wheel, the amount of such decrease is incalculable. When the fact is kept in mind that the fender and the wheel were traveling at almost exactly the same speed, it certainly does not seem impossible that the increased friction would not be adequate to compensate for the tendency to the left caused by the lifting of the right front of the truck.

We conclude, therefore, that there is nothing in the construction of the truck which would render appellees' theory of the accident inherently impossible. Before coming to the Government's second contention, i. e., that appellees' theory is completely inconsistent with the undisputed facts, a fuller description of the two competing theories here would seem helpful.

The Government's theory is that the driver of the dump truck fell asleep at the wheel. In order to put this theory in perspective, it seems necessary to point out that the accident occurred in mid-afternoon, on a straight stretch of highway, approximately eight miles from the Red River Arsenal where the trip began. A great deal of testimony, impliedly credited by the trial judge, was to the effect that the driver was rested and alert when he departed on his journey. Moreover, the driver of the grain truck testified that just before the collision it appeared to him that the driver of the dump truck was wrestling with the wheel of his vehicle. Finally, the Government's own expert testified that his examination of...