Samuel W. Moore v. John Smith v. Ottus Construction Equipment Co. and James Pfadt (Third-Party Defendants), 343 F.2d 206, 3rd Cir. (1965)
Uploaded by
Scribd Government DocsSamuel W. Moore v. John Smith v. Ottus Construction Equipment Co. and James Pfadt (Third-Party Defendants), 343 F.2d 206, 3rd Cir. (1965)
Uploaded by
Scribd Government Docs343 F.
2d 206
Samuel W. MOORE, Appellant,
v.
John SMITH
v.
OTTUS CONSTRUCTION EQUIPMENT CO. and James
Pfadt (Third-Party Defendants).
No. 14750.
United States Court of Appeals Third Circuit.
Argued Oct. 6, 1964.
Decided March 31, 1965.
William H. Higgins, Erie, Pa., for appellant.
Bernard F. Quinn, Quinn, Leemhuis, Plate & Buseck, Erie, Pa., for
appellee.
Before KALODNER, GANEY and FREEDMAN, Circuit Judges.
KALODNER, Circuit Judge.
A jury returned a verdict in favor of the defendant Smith in an action brought
by the plaintiff Moore for injuries which he sustained when the truck in which
he was a passenger collided with an automobile driven by Smith at an
intersection of two highways in Erie County, Pennsylvania. Following denial of
his motion for a new trial,1 which charged errors in instructions to the jury, the
plaintiff filed this appeal. Jurisdiction exists by reason of diversity.2
Pennsylvania law governs.
The accident happened at about noon on September 1, 1961, at almost the
center of the intersection of Pennsylvania Highway Route 19 and Pennsylvania
Highway Route 6N, about four miles south of Waterford, Erie County. The day
was clear; the two highways, each 22 feet wide, were dry. The truck in which
plaintiff was a passenger was proceeding north on Route 19; defendant's car
was proceeding east on Route 6N, so that the truck was to his right. The
plaintiff, and the truck driver, as well as other witnesses, testified that the traffic
light was green for northbound traffic as the truck proceeded to cross the
intersection; that the defendant's car ran through a red light and struck the truck,
causing it to careen and turn over. The defendant and his witnesses said that he
had the green light and that the truck went through a red light. The truck driver
said that his view was somewhat obstructed to the left-- or west-- because of an
elevation at the southwest corner on which there was some foliage and shrubs.
The defendant did not say that his view to his right, from which the truck came,
was obstructed by the elevation. He simply said that the traffic light 'looked'
green in his favor; he 'was just watching the light'; he 'didn't look to the left-- or
to the right', but went straight ahead. His testimony on direct and crossexamination, set forth in the margin,3 in substance discloses that the defendant
never saw the truck 'until it was upset' and that he 'didn't know what hit me.'
3
The trial judge charged the jury with respect to this testimony that under
Pennsylvania law 'a motorist with a green light in his favor must look before
entering into an intersection-- you have the right of way because of the green
light, but you are bound to take a look at the situation in regard to what may be
in front of you-- you can't barge through the intersection just because the light
is green.'
Later, after he had charged the jury with respect to damages, the trial judge, at
the very end of his charge, said:
'Now, all counsel have argued that the light was green in their direction * * *.
You may think that it happened so quick, so close to the light and so on, that
both of them were at fault, or that the truck driver's light turned red and Smith
was privileged to go ahead as he did and the truck driver was guilty. * * *'
The trial judge did not instruct the jury that under Pennsylvania law an operator
of a motor vehicle who does not look for moving traffic on an intersecting
street or road as he approaches the intersection is guilty of negligence as a
matter of law, even though he proceeds across the intersection with a traffic
light in his favor. His statement to the jury 'that you are bound to take a look * *
* you can't barge through the intersection just because the light is green' fell far
short of the required instruction that a failure to look, and 'barging through', is
negligence as a matter of law.
Here the trial judge left it to the jury to decide whether a failure to look and
'barging through' constituted negligence. His later instruction, at the end of his
charge, that 'Smith was privileged to go ahead as he did', if he had the green
light, was of course plain error.
8
Dispositive here, in its critical aspects, is the 'all-fours' case of Ratcliff v.
Myers, 382 Pa. 196, 113 A.2d 558 (1955). There the plaintiff Ratcliff was a
passenger in an automobile which collided in an intersection with a car
operated by the defendant Sterling Myers on the business of its owner, codefendant Albert Myers. The defendants brought in as additional defendants,
Yost, the driver of the car in which the plaintiff was a passenger, and Bryant
Air Conditioning Corporation, Yost's employer. At the trial, the defendant
Sterling Myers testified, as the defendant did in the instant case, that he looked,
saw the green light was in his favor, and the next thing he knew he 'was in the
intersection and we were in collision;' that when he noticed the Yost car 'seeing
and hitting was just one.'
As in the instant case, the trial judge left it to the jury to determine whether the
defendant Myers was negligent. The jury returned a verdict in favor of the
defendant Myers and against Yost. The trial court granted a new trial and the
Supreme Court affirmed. In doing so it stated (p. 201, 113 A.2d p. 560):
10
'It is well established that an operator of a motor vehicle who does not look for
moving traffic on an intersecting street as he approaches the intersection is
quilty of negligence as a matter of law even though he proceeds across the
intersecting street with a traffic light in his favor. Lewis v. Quinn, 376 Pa. 109,
101 A.2d 382. Myers himself admitted that 'seeing and hitting was one,' which
is proof positive that he could not have looked up Highway Route 194 before
entering the intersection; it must also be borne in mind that the Yost car,
coming from the right, had the right of way.'
11
In Nehrebecki v. Mull, 412 Pa. 438, 194 A.2d 890 (1963) a jury found in favor
of a defendant who had testified that he did not look to his right or left for other
cars when he entered the intersection. The trial court granted a new trial and
the Supreme Court affirmed. In doing so it stated (p. 441, 194 A.2d p. 891):
12
'It is thus patently clear that the jury's conclusion that the defendant was free of
any causative negligence is not supported by the record. At an intersection, a
driver of an automobile is required to be vigilant and to look to his right and left
for approaching traffic before entering thereon * * * (citing cases). 'The
defendant's admission that he did not look for approaching traffic before
entering the intersection, in itself convicted him of negligence.'
13
In the recent case of Smith v. United News Co., 413 Pa. 243, 196 A.2d 302
(1964), where a motorist who had a green light failed to continue to look as he
entered the intersection, it was again said (p. 247, 196 A.2d p. 305):
14
'* * * a motorist who has the green light must observe the conditions at the
intersection at the time he enters it to be reasonably assured that his journey
will be safe. But his duty to observe conditions continues, and the failure to do
so is fatal * * *.'
15
To the foregoing the Court added, at page 248, 196 A.2d at page 305:
16
'We reiterate that a driver who has a green light is not held to the same standard
of care as the driver at an uncontrolled intersection, but he cannot place blind
reliance upon the light or upon the conditions observed prior to his entering the
intersection.'
17
The trial court erred in his charge in a further respect in that he submitted to the
jury the issue of the plaintiff's contributory negligence in the absence of
testimony justifying his doing so.
18
He apparently premised his action on the fact that, as he put it, 'one witness
stated that they (plaintiff and his driver) were talking as they approached there
(the intersection).'
19
After a detailed statement of the law respecting contributory negligence the
trial judge said to the jury:
20
'* * * if the plaintiff is guilty of contributory negligence in any degree, he may
not recover, but, as the court sees it, the only possible point would be the
conversation, and I think if he is entitled to recover against Smith, he is not
guilty of contributory negligence, but still it is for the jury to determine.'
21
The mere circumstance that the plaintiff and his driver were engaged in
conversation would not sustain a finding of contributory negligence unless the
evidence disclosed that the driver by reason of being engaged in conversation
turned his head or eyes away from the road during its course. No such evidence
was adverted to by the District Court in its charge or Opinion or by counsel for
the defendant.
22
It is settled in Pennsylvania, and it is the general rule, that '(a) trial judge
should never submit to a jury a conjectural theory of negligence or causation';
'(a) point of fact not warranted by the evidence should not be submitted.'
Stegmuller v. Davis, 408 Pa. 267, at page 271, 182 A.2d 745, at page 747
(1962). And see, O'Neill v. Reading Co., 306 F.2d 204, p. 206 (3 Cir. 1962),
where we stated:
23
'What has been said establishes that an issue was submitted to the jury on which
there was no evidence and that this is reversible error is settled by a long line of
cases.'
24
For the reasons stated the Judgment of the District Court in favor of the
defendant John Smith and against the plaintiff Samuel W. Moore, pursuant to
the jury's verdict, will be reversed and vacated and the cause remanded to the
District Court with directions to grant a new trial.4
The Opinion of the District Court is reported at 223 F.Supp. 721 (W.D.Pa.
1963)
The plaintiff is a citizen of Pennsylvania; the defendant is a citizen of Iowa.
Pfadt, driver of the truck and his employer, Ottus Construction Equipment Co.,
who were impleaded by the defendant as third-party defendants, are citizens of
Pennsylvania. Since the jury's verdict was in favor of the defendant the action
as to the third-party defendants was dismissed
The defendant Smith testified as follows on direct examination:
'Q. As you approached the intersection of 6N and Route #19, can you tell us the
color of the light?
'A. It looked green to me.
'Q. Can you tell us whether it remained green or whether it turned red against
you before you reached the corner?
'A. I was just watching the light and it looked alright to me all the time.
'Q. Tell us what occurred as you entered the intersection.
'A. The truck hit me and took me right up the road a ways.
'Court: Speak up I didn't hear you. What did vou say?
'Witness: The truck hit the front end of my car and took me up the pavement a
ways, hit me right behind the door.
'Q. Where was your car first struck? What part of your car was first struck?
'A. The front end.
'Q. Did you observe the truck turning over?
'A. I didn't hear you.
'Q. Did you see the truck turn over?
'A. I heard it turn over ahead of me. It made an awful noise.'
On cross-examination:
'Q. Well, as you approached this intersection, you say that you had the green
light?
'A. It looked green to me. I was watching the light.
'Q. Well, you say it looked green. Are you real familiar with the traffic signals
and colors we have here in Pennsylvania?
'A. Well, it is green.
'Q. Well, how far west of this traffic light were you when you first observed it
was green?
'A. I wouldn't know. I wouldn't know how far.
'Q. Well, was it red at any time as you approached it?
'A. No.
'Q. It was green all the time?
'A. Green.
'Q. Well, as you approached the intersection, you say that you had the green
light all the way, and because you had this green light you continued to enter
this intersection?
'A. It looked alright to me.
'Q. So you continued right on through, is that correct?
'A. Yes.
'Q. You didn't pull up and stop at this traffic light, did you?
'A. No.
'Q. You are certain of that?
'A. I am pretty sure of that.
'Q. When did you first observe the truck?
'A. I didn't get that.
'Q. When did you first see the truck?
'A. I didn't see the truck at all until it was upset.
'Q. You didn't see the truck before you struck it?
'A. No. I didn't know what hit me.
'Q. Did you know which side of the road you were on at the time of the impact?
'A. No, I don't.
'Q. Did you look to the right or to the left as you approached this intersection?
'A. I was kind of watching ahead because I was going straight through.
'Q. You were watching ahead?
'A. Watching ahead and I was watching the light.
'Q. So you didn't look to the left?
'A. No.
'Q. Or to the right?
'A. I don't think so.
'Q. After the accident was over, did you get out and inspect the damage to your
car?
'A. Yes.
'Q. And what part of your car did you find damaged?
'A. The front end.
'Q. And did you also inspect the damage to the truck?
'A. I looked at it, yes.
'Q. And what part of the truck appeared to be damaged?
'A. Well, it was laying down on its side. I couldn't tell.
'Q. Well, is it possible that in the excitement and confusion that you are not
certain whether you ran into the truck or the truck ran into you?
'A. Well, all I know is it just hit me all at once. That is all I can say.
'Q. Did you put your brakes on?
'A. No, I didn't.
'Q. Did you attempt to swerve?
'A. What is that?
'Q. Did you attempt to swerve, to turn your car to the left or to the right?
'A. No.'
4
The docket discloses that 'there is no verdict nor judgment to be entered in the
third party action.'
