|
View Case
|
|
Cited Cases
|
|
Citing Cases
|
|
Comment (0)
|
 |
|
|
|
|
|
|
|
SIMBLEST v. MAYNARD
427 F.2d 1 (1970)
Samuel SIMBLEST, Plaintiff-Appellant,
v.
Joseph MAYNARD, Defendant-Appellee.
No. 661, Docket 34285.
United States Court of Appeals, Second Circuit.
Argued April 1, 1970.
Decided May 12, 1970.
Robert Grussing, III, Brattleboro, Vt., for plaintiff-appellant.
Robert H. Erdmann, Burlington, Vt. (Wick, Dinse & Allen, Burlington, Vt., on the brief), for defendant-appellee.
Before KAUFMAN and FEINBERG, Circuit Judges, and TIMBERS, District Judge.*
TIMBERS, District Judge: We have before us another instance of Vermont justice — this time at the hands of a federal trial judge who, correctly applying the law, set aside a $17,125 plaintiff's verdict and entered judgment n. o. v. for defendant, Rule 50(b), Fed.R. Civ.P., in a diversity negligence action arising out of an intersection collision between a passenger vehicle driven by plaintiff and a fire engine driven by defendant in Burlington, Vermont, during the electric power blackout which left most of New England in darkness on the night of November 9, 1965. We affirm. I.Plaintiff, a citizen and resident of New Hampshire, was 66 years of age at the time of the accident. He was a distributor of reference books and had been in Burlington on business for three days prior to the accident. He was an experienced driver, having driven an average of some 54,000 miles per year since 1922. He was thoroughly familiar with the intersection in question. His eyesight was excellent and his hearing was very good. Defendant, a citizen of Vermont, had resided in Burlington for 44 years. He had been a full time fireman with the Burlington Fire Department for 17 years. He was assigned to and regularly drove the 500 gallon pumper which he was driving at the time of the accident. He was thoroughly familiar with the intersection in question. The accident occurred at the intersection of Main Street (U.S. Route 2), which runs generally east and west, and South Willard Street (U.S. Routes 2 and 7), which runs generally north and south. The neighorhood is partly business, partly residential. At approximately the center of the intersection there was an overhead electrical traffic control signal designed to exhibit the usual red and green lights. At the time of the accident, approximately 5:27 P.M., it was dark, traffic was light and the weather was clear. Plaintiff was driving his 1964 Chrysler station wagon in a westerly direction on Main Street, approaching the intersection. Defendant was driving the fire engine, in response to a fire alarm, in a southerly direction on South Willard Street, also approaching the intersection.
* Chief Judge of the District of Connecticut, sitting by designation. 1. Plaintiff has stated in his brief in this Court that "as he approached the intersection, he did look to his right" (Appellant's Brief, 5); and he emphasizes "the only direct evidence on this point . . . from the plaintiff who testified as follows:
`Q. You did look to the right? A. Oh yes, sir. I sure did.'" (Appellant's Brief, 12-13.) We find this testimony, lifted out of context, unfortunately to have created a mistaken impression on a critical issue in the case. Plaintiff's complete direct testimony as to when he looked to his right, and in the sequence given, is as follows: "Direct Examination (By Mr. Grussing) * * * * * Q. Now, tell us, Mr. Simblest, in your own words, just what occurred when you entered that intersection. A. Well, I will repeat. I had the `green' light with me, proceeded through, was talf (sic) to ¾ through the street, looked to my right, and within 12 feet of me, here is a big, massive fire truck . . . . (Tr. 17) * * * * * Q. Did you, as you approached this intersection, did you look to your right at all to see what was coming out of the intersection? A. Coming into an intersection with people ready to go across, with fairly decent eyesight I could see from the left to the right to the front, and I had already watched in the rear before they got to that angle. Q. You did look to the right? A. Oh, yes, sir. I sure did. Q. Were you able, or did you see this truck approaching? A. Within `12' feet. It was too late. Q. The first time you saw it, it was within 12 feet of you? A. That is right." (Tr. 19) 2. The maximum speed attributed to the fire engine as it approached the intersection was 30 to 35 miles per hour (testimony of Captain Fortin). 3. Assuming that the federal standard were controlling, plaintiff's contention that under that standard evidence introduced by the moving party may not be considered is open to question. Plaintiff relies on Wilkerson v. McCarthy, 336 U.S. 53, 57 (1949). But most Courts of Appeals have held that evidence introduced by the moving party may be considered, distinguishing Wilkerson on the ground that FELA cases are sui generis. 5 Moore, supra, at 2329.
See especially the comprehensive opinion of the Fifth Circuit in Boeing Company v. Shipman, 411 F.2d 365 (5 Cir. 1969) (en banc), holding (1) that in diversity cases a federal rather than state standard should be applied in testing the sufficiency of the evidence in connection with motions for a directed verdict and for judgment n. o. v.; (2) that the FELA standard for testing the sufficiency of the evidence on such motions is not applicable in diversity cases; and (3) that the federal standard to be applied in diversity cases requires the court to consider "all of the evidence — not just that evidence which supports the nonmover's case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion." 411 F.2d at 374. 4. We emphasize that, solely for the purpose of testing the validity of plaintiff's claim under the federal standard, we assume without deciding that the federal standard is as stated. But compare, e. g., Boeing Company v. Shipman, supra note 3, at 373-75. 5. 23 V.S.A. § 1033, in relevant part, provides:
"Except as hereinafter provided, all vehicles shall give the right of way to other vehicles approaching at intersecting highways from the right; and shall have the right of way over those approaching from the left; provided that upon the approach of an ambulance, police or fire department vehicle which is sounding a siren or displaying a red light or both, all other vehicles shall pull to the right of the lane of traffic and come to a complete stop until such emergency vehicle has passed. . . ." Violation of this statute under Vermont law constitutes prima facie evidence of negligence. Dashnow v. Myers, 121 Vt. 273, 155 A.2d 859 (1959). 6. This is the arithmetical mean (.322 seconds) between the maximum and minimum time intervals, according to the evidence, within which plaintiff could have observed the fire engine travel 12 feet. The minimum interval (.230 seconds) is based on Captain Fortin's testimony that the fire engine was traveling 35 miles per hour as it approached the intersection (supra note 2); the maximum interval (.414 seconds) is based on defendant's testimony that he was traveling 20 miles per hour (supra pages 3 and 4).
|
|
|
|
|