Winn v. Consolidated Coach Corporation
| Decision Date | 09 May 1933 |
| Docket Number | No. 6192.,6192. |
| Citation | 65 F.2d 256 |
| Parties | WINN v. CONSOLIDATED COACH CORPORATION. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. B. Daniel, of Nashville, Tenn., for appellant.
Lee Douglas and C. P. Hatcher, both of Nashville, Tenn. (R. W. Keenon, of Lexington, Ky., on the brief), for appellee.
Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.
The appeal is by the plaintiff below, who seeks reversal of a judgment entered for the defendant upon a directed verdict in a suit for damages growing out of the death of his intestate, killed in an automobile collision near Nashville, Tenn., in September, 1928.
Federal jurisdiction is (presumably) based upon diversity of citizenship. We note, however, the entire absence of jurisdictional averment in respect to the citizenship of the plaintiff. The declaration is silent upon it, and the record does not elsewhere furnish the necessary information. Since the defect may, and we assume can, be cured by amendment, and since jurisdiction appears to have been conceded, it seems to us, in view of the decision arrived at, that nothing is to be gained by sending the case back for the purpose of having the insufficient pleading corrected. Norton v. Larney, 266 U. S. 511, 515, 45 S. Ct. 145, 69 L. Ed. 413; Howard v. De Cordova, 177 U. S. 609, 614, 20 S. Ct. 817, 44 L. Ed. 908; Realty Holding Co. v. Donaldson, 268 U. S. 398, 45 S. Ct. 521, 69 L. Ed. 1014.
In broad daylight, upon a clear day in September, the decedent was driving a Chevrolet car southward on the Gallatin road toward Nashville. About five and a half miles north of the city her car collided with the defendant's bus, containing a driver and nine passengers, proceeding northward from Nashville. As a result of the collision, the decedent's car was crushed at its left front end, the bus partly left the road on the left, and there overturned, the decedent was thrown from her car under the bus and killed.
Of the many allegations of negligence contained in the declaration, all have now been abandoned except the averments that the defendant's bus approached the scene of the accident at an unlawful rate of speed, and that the driver of the bus failed to yield one-half of the road as required by the Tennessee Code (Code 1932, § 2671). The plaintiff was unable to produce witnesses who saw the accident. He relies upon skid marks seen by various persons on the pavement, and said by them to indicate that the bus was proceeding in a zigzag course from one side of the highway to the other, upon the position of the two vehicles after impact, and upon the presence of broken glass and blood on the west side of the highway. He adds to this the testimony of an automobile driver who, driving north from Nashville, was passed by the bus a half mile south of the scene of the accident at an estimated speed of fifty to fifty-five miles an hour.
The defendant's witnesses were nearly all eyewitnesses to the collision. They included the driver of the bus, three or four of its passengers, themselves injured in the accident, and two men driving southward on a truck at the time. In spite of some minor inconsistencies and inaccuracies to be expected in such cases, these witnesses all testified that the defendant's bus was proceeding northward on its right side of the highway, at a speed of not more than thirty miles an hour; that, when danger seemed imminent, the bus driver applied his brakes and sounded his horn. They further testified, or the majority of them did, that the Chevrolet car, driven at a high speed, came suddenly from behind a south-bound truck and proceeded thereafter on its wrong side of the road up to the point of collision. In this respect the defendant's evidence is wholly without contradiction. The career of the bus to the west after impact is explained as being due to the fact that immediately before impact its driver,...
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