Zink v. Radewald
| Decision Date | 23 June 1966 |
| Docket Number | No. 15612.,15612. |
| Parties | Dale N. ZINK, Plaintiff-Appellant, v. Edwin A. RADEWALD, Jr., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James E. Keating, Gerald A. Kamm, F. Gerard Feeney, South Bend, Ind., for appellant.
Roland Obenchain, Jr., South Bend, Ind., Philip A. Hadsell, Jr., Niles, Mich., for appellee.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit Judges.
Dale N. Zink, the plaintiff-appellant, brought this diversity action in the District Court against Edwin A. Radewald, Jr., the defendant-appellee, to recover damages allegedly caused by negligence of the defendant in operating a motor vehicle. The case was tried to a jury, and at the close of the plaintiff's evidence the trial judge directed a verdict for the defendant. Judgment was entered upon the verdict and plaintiff appealed.
Plaintiff contends that the District Court erred in withdrawing the case from the jury. Thus, the sole contested issue presented for determination upon appeal is whether the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the plaintiff, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions. If so, it was error to grant defendant's motion for a directed verdict and to enter judgment for the defendant thereon. Smith v. J. C. Penney Company, 7 Cir., 261 F.2d 218, 219.
The evidence discloses that on March 22, 1963, at about 3:30 P.M., plaintiff was traveling south on Michigan Street in South Bend, Indiana, in his 1958 two-door Studebaker automobile. The factories were letting out and the traffic was heavy. The weather was clear and the pavement was dry. Plaintiff was fourth or fifth in the line of traffic when it stopped at the intersection of Broadway and Michigan streets in observance of a traffic control signal light. When the light changed to green the plaintiff and the automobiles ahead of him proceeded through the intersection but "there was no speeding up". When plaintiff had proceeded ninety-eight feet beyond the intersection the traffic ahead of him again came to a stop. Plaintiff stopped six to ten feet behind the automobile in front of him. Three or four seconds later the rear of plaintiff's automobile was struck by a one and one-half ton stake truck driven by the defendant. The impact of the truck with plaintiff's vehicle threw a passenger from the right rear seat of the automobile over the back of the front seat, knocking his glasses off and throwing his hat into the windshield. Plaintiff was thrown up and onto the steering wheel. The metal frame of the driver's seat was sprung back. The rear of plaintiff's automobile was extensively damaged and the plaintiff sustained personal injuries. The defendant had been following behind the plaintiff's automobile for as much as three blocks and his vision was unobstructed.
The defendant contends that the evidence showing the circumstances surrounding the collision and the effects it produced would not warrant a reasonable inference that the collision was caused by any negligence upon his part. In this connection the defendant points to the absence of any direct evidence of any particular negligent act or omission on his part and to the absence of direct evidence that he was driving at an excessive speed, following too closely behind plaintiff's vehicle, failed to keep a lookout, or failed to use his brakes. Defendant relies upon the inapplicability of the doctrine of res ipsa loquitur (plaintiff makes no contention that such doctrine applies) and invokes the...
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Wrigley v. Electric and Machine Company
...in the instant case, then, we must determine whether the record, viewed in the light most favorable to the plaintiff, Zink v. Radewald, 369 F.2d 253, 255 (7th Cir. 1966), 5 Moore's Fed.Prac. ¶ 50.072, would support the jury finding that defendant was guilty of wilful and wanton misconduct, ......
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Gudgel v. Southern Shippers, Inc.
...is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions." Zink v. Radewald, 7 Cir., 369 F.2d 253, 254 (1966); Valdes v. Karoll's, Inc., 7 Cir., 277 F.2d 637, 638 (1960); Smith v. J. C. Penney Co., 7 Cir., 261 F.2d 218, 219 Under Illinoi......
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Haidri v. Egolf
...have gone to the jury. We find in each, however, certain facts which distinguish it from the record before us. In Zink v. Radewald (7th Cir. 1966), 369 F.2d 253 the plaintiff was stopped in a line of traffic, the defendant had been following her for at least three blocks and had an unobstru......
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Puls v. I. & S. Trailways, Inc.
...signal, or to clear the travel portion of the road before stopping. 3 Indiana Law Encyclopedia, Automobiles, § 132, p. 489; Zink v. Radewald, 7 Cir., 369 F.2d 253. The validity of the legal excuse of the defendant and the determination of the proximate cause are questions to be determined b......