Wesley v. English
| Decision Date | 09 June 1934 |
| Docket Number | No. 7328.,7328. |
| Citation | 71 F.2d 392 |
| Parties | WESLEY v. ENGLISH et al. SAME v. MICHEL. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John M. Coe, of Pensacola, Fla., for appellant.
Joseph G. Dempsey, Jr., of New Orleans, La., E. Dixie Beggs, Jr., of Pensacola, Fla., and Harry W. Stewart, Jr., of Jacksonville, Fla., for appellees.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
These two actions grow out of a collision between an automobile and an oil truck. The plaintiffs, Mrs. English and Miss Michel, occupants of the automobile, were injured in the collision, and each sued the defendant Wesley, owner of the truck, to recover damages, alleging that the collision was caused by the negligent operation of his truck. The defendant pleaded the general issue, and in addition contributory negligence on the part of Mrs. English, alleging that she carelessly drove her automobile into his truck. The trial of the cases together by consent resulted in verdicts and judgments in favor of the plaintiffs. The defendant appeals, and assigns error upon instructions given and charges requested but refused concerning the giving of signals by drivers of motor vehicles.
The accident happened on state highway No. 1, just inside the corporate limits of De Funiak Springs, Fla., a town of 2,600 inhabitants, about a mile east of the center of that town, at a point where a driveway leads at right angles from the north side of the highway into the bulk oil station of the defendant. Highway No. 1 is one of the main highways of the state. It is on a right of way 66 feet wide, is hard-surfaced to a width of 18 feet, and is much used by the traveling public. As Mrs. English, accompanied by her traveling companion Miss Michel, was driving her automobile east along that highway, and after she had passed through De Funiak Springs, she overtook defendant's truck, which was moving in the same direction, and was attempting to pass it when the collision occurred. The plaintiffs both testified that Mrs. English sounded her horn when she came within 25 or 30 feet of the truck; that the truck turned to the right as if to let her pass, but that as she was passing the entrance to the driveway the truck turned to the left and struck the rear of her car. The truck was on its way from the depot down town to defendant's oil station. It was equipped with an oil tank located back of the driver's cab, and with shelves which extended six inches further out on each side than the cab; and on the shelf on the left side were two oil drums. The truck driver testified that he did not hear the horn or see the automobile until it was passing the door of the truck, but admitted that he neither looked to the rear nor in his rear vision mirror, which was located on the left door, to ascertain whether a car was closely approaching him from behind as he attempted to make the left turn onto the driveway. He testified further that before coming to the driveway he gave a signal with his hand to indicate that he was about to make a left turn. It is a fair inference from the undisputed testimony that in preparation for the square turn into the driveway the truck was swung to the right or south side of the highway, and that this maneuver was mistakenly interpreted by Mrs. English as one made for the purpose of permitting her to pass on ahead.
The court charged the jury that the driver of the truck was guilty of negligence if he made a left turn off the highway onto the driveway without giving the usual signal by extending his arm and pointing to the left, although there was no statute requiring, the giving of hand or arm signals; that it was his duty before making a left turn from the right side of the highway to see or ascertain, assuming he did not know, whether there was a car in close approach behind him; and that Mrs. English was guilty of contributory negligence, and could not recover, if she failed to sound her horn within a reasonable distance behind the truck. But the court refused to charge as requested by defendant that Mrs. English was guilty of negligence as a matter of...
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Gauck v. Meleski, 21158.
...therefore uncontradicted and must be accepted as true. The district court, apparently relying in part on our decision in Wesley v. English (5 Cir. 1934), 71 F.2d 392, concluded that Gauck's failure to signal constituted, as a matter of law, contributory negligence which proximately caused h......
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Madron v. McCoy
...such contributory negligence as to bar recovery. Neither Williams v. Herrin Transfer & Warehouse Co., (La.) 153 So. 313 nor Wesley v. English 71 F.2d 392, reversed a verdict for defendant, or its equivalent, contributory negligence was not shown as a matter of law but affirmed verdicts whic......
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Marler v. United States, 433-P-Civ.
...side of a busy highway, owes to those behind him a duty to see whether there was an overtaking car immediately behind him. Wesley v. English, 5 Cir., 71 F.2d 392, 393. In this particular case this duty rested heavily on the operator of the government vehicle. The view through the rear view ......