United States v. Uarte

• Decision Date: 17 May 1949
• Docket Number: No. 12042.,12042.
• Citation: 175 F.2d 110
• Parties: UNITED STATES v. UARTE.
• Court: U.S. Court of Appeals — Ninth Circuit

175 F.2d 110 (1949)

UNITED STATES v. UARTE.

No. 12042.

United States Court of Appeals Ninth Circuit.

May 17, 1949.

James M. Carter, U. S. Attorney, Ernest A. Tolin, Clyde C. Downing, and Max F. Deutz, Asst. U. S. Attorneys, Los Angeles, Cal., for appellant.

Stammer & McKnight, W. H. Stammer, and Galen McKnight, Fresno, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and BONE, Circuit Judges.

BONE, Circuit Judge.

This is an action brought under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq.,^* in which appellee recovered judgment against appellant. Appellee's complaint alleged in general terms that he sustained serious personal injuries and property damage as the result of an automobile collision caused by the negligence of two Federal Government Navy Department employees (petty officers) while they were driving a Government-owned automobile in the performance of official duties within the scope of their employment. The specific charge is that they drove a Navy Department "station wagon" automobile in such a negligent manner as to cause it to collide with his sedan automobile which in turn caused his sedan to come into collision with a truck and trailer then going in the opposite direction. The resulting collision inflicted upon appellee the aforesaid injuries and caused damage to his sedan.

The accident in question occurred about 11:30 P.M. on a paved highway near Madera, California, at a point where the paving was approximately 22 feet in width. It was raining and the highway was slippery. Appellee was driving in a southerly direction and the Navy car was proceeding in the same direction at some point behind appellee's car. A heavy truck to which was attached a semi-trailer and a trailer was then proceeding in a northerly direction on the same highway. The collision which occurred involved all three vehicles; both Navy men were killed and their car practically demolished. Appellee received a fractured skull and brain concussion resulting in a complete amnesia as to the facts of the accident. No other witness saw the accident except McCoy, the driver of the truck, and his wife who was riding with him. She was unable to add anything of substance to his testimony.

The record before us calls for emphasis upon the fact that the three-vehicle crash occurred with appalling suddenness on a dark and rainy night. This fact probably accounts for some uncertainty which characterized the testimony of McCoy. It is certain that a calm appraisal by McCoy of the precise movements and positions of the fast moving three vehicles at the instant of the crash was well-nigh impossible. He was abruptly confronted with a highly dangerous situation; his truck-trailer combination weighing 55,000 pounds was then going 40 miles an hour on his own right side of the highway. His own safety and that of his wife must have appeared to be of supreme importance in the split-second before the cars caromed off one another and caused his heavy truck-trailer combine to "jack-knife" across the highway.

The Navy car was almost completely demolished and after the collision was about 40 feet north of the position of the other vehicles.

Photographs and sketches were employed to show marks on the cars and on the highway, and the position of the various vehicles right after the crash.

There was testimony that the Navy car was coming up behind appellee's car at a high rate of speed, an estimate placing this speed at 70 or 80 miles per hour at a point a few miles north of the point of the collision.

The Government is persuaded that this confusing and kaleidoscopic pattern of events fails to show a degree of negligence of the operator of the Government car which imposes liability on the Government. It avers that inferences drawn therefrom by the trial court lack support in the evidence.

We cannot agree with the Government's view. It appears that certain aspects of the evidence and testimony did trouble the trial judge but this was natural since he was here confronted with a difficult task in appraising and weighing all of the facts disclosed in the evidence. The totality of these facts caused him to finally conclude that the negligence of the driver of the Government car was sufficiently established as the proximate cause of the accident. As he indicated, he was called upon to exercise judgment, from hearing the evidence and observing the witnesses, and we cannot say that the inferences he drew from the confusing and complicated array of facts are unreasonable or lack support in the record.

Appellant advances three major reasons for reversal of the judgment: (1) The evidence does not support the judgment in view of the fact that only the truck driver (McCoy) and his wife were eye-witnesses; (2) error in admitting evidence of speed of the Government car at remote points which were 4 to 11 miles north of the point of the collision, and without any additional evidence showing the speed or manner of operation of said vehicle between these remote points and the scene of the accident, or any evidence indicating that its speed was in any way a cause of the accident, and (3) error in permitting McCoy to be called and examined as an adverse witness by appellee pursuant to Rule 43(b), Federal Rules Civil Procedure, 28 U.S.C.A.

We have already indicated our lack of agreement with the first of these contentions.

As to the second contention. There was evidence from estimates tending to establish facts from which the court could logically infer that for over a course of several miles north of the place of collision, the Navy car had been continuously proceeding at a rate of speed of from 70 to 80 miles per hour; that it had then been handled in a reckless manner in passing a car ahead on a slippery highway; that its condition after the...