SHELL OIL CO. v. SLADE

HUTCHESON, Circuit Judge.

The complaint for death damages resulting from an automobile collision in a fog was in two counts. The first count charged negligence, the second maintenance of a nuisance. The gravamen of both counts was that: for a long period of time prior to the injury, defendant had permitted the discharge from its plant into an open drainage ditch and thence into a canal along the side of the highway of large quantities of very hot water with the result that in the cool of the evenings and early mornings they created dense and heavy fogs immediately above the paved highway; and that plaintiffs' intestate, driving along it at about 7:15 on the morning of March 4, 1940, with his vision wholly obscured on said occasion by said dense and heavy fog and cloud so that he could not, and did not, see it, had run into and against a truck which had been overturned on the shoulder of the highway.

The defendant, admitting that at the time plaintiffs' decedent came to his death there was a dense fog over the highway which wholly obscured the vision of all persons driving vehicles thereon, alleged that the death was caused by the decedent's own contributory negligence in driving into the fog at a rate of speed such that he could not stop within the range of his vision.

Tried to a jury, while the evidence was conflicting as to whether the heavy fog which admittedly was present was caused or contributed to by defendant's discharge of hot water into the highway canal, there was sufficient evidence to support the verdict of the jury that it was. The evidence, however, as to the blinding nature and extent of the fog and as to how the accident came about was without substantial conflict. All of the witnesses put on by plaintiff agreed that a thin fog began at least one-half mile from the place of the accident and that when the drivers entered the thin fog they could see a heavy fog ahead; that the line between the thin fog and the thick fog was like looking out of a lighted room into a dark one;1 that the thick fog was like a wall in front of them. All agreed that in driving through the fog without coming to a stop or slowing down so they could stop immediately, they were taking a chance. All agreed that in the thick fog the person turning off the highway onto the shoulder could not see obstructions there. All agreed that Slade did not see the truck and ran into it at a speed estimated by Greer at 20 and by Arnold at 10 miles per hour. The undisputed evidence as to the force of the collision, and the photographs showing the condition of the trucks after the collision, established that heavily loaded as it was, a combination tractor and semi-trailer, the tractor weighing 5400 pounds, the trailer weighing 7200 pounds and carrying a 9000 pound load, and therefore much more difficult to stop than an empty truck, Slade's truck was running much too fast for safety. Notwithstanding these undisputed facts, the district judge, instructing a verdict for defendant on the nuisance count, denied its motion to instruct for it on the negligence count. There was a verdict on this count for plaintiff for $35,000, a credit on it of $3300 received as workmen's compensation, and a requirement by the judge that plaintiff remit another $3,000.

Defendant has appealed, assigning numerous errors; that a verdict should have been instructed for it because (1) the evidence failed to show defendant was guilty of negligence proximately causing the injury and (2) that it showed contributory negligence as a matter of law; that the verdict was so large in amount as to evidence passion and prejudice; and that the court had erred in the admission and rejection of evidence and in giving and refusing instructions.

Here, not waiving any of its points, appellant vigorously urges upon us (1) that the fog was not due to any negligence of defendant, but if it was, the fog was merely a condition and not a proximate cause of the collision, and (2) the deceased was himself guilty of contributory negligence.

Since we are quite certain that but for Slade's contributory negligence, the injury would not have occurred and that defendant should, therefore, have had an instructed verdict on this ground, we find it unnecessary to consider the other points appellant urges upon us. It is settled law in Louisiana that one entering a fog, such as the one pleaded and testified to here, must stop until sure of his way, or if he drives into it, he must proceed at such a speed as that he can stop the car in the distance within which he can see objects in his way. It will not do for such a one to say, as here, that he was driving 20, 15 or even 10 miles an hour. The evidence establishes that in the fog he did not see and could not see the object he ran into within the distance within which he could stop his truck, but more than that, it shows that, fully warned by the fog in the road, by Greer's blinking his lights at him and by Greer's disappearance in the fog, he took the hazardous course not of turning off onto the shoulder to stop, but of trying to drive around the cars in the road by using the shoulder when in the fog there was no way by which he could determine whether other cars were parked there or whether there were other obstructions in his way. That Slade drove into a dense fog where he could not see his way and was the author of his own death, both the pleadings and the evidence leave in no doubt. Plaintiffs pleaded that "the vision of said Slade was wholly obscured on said occasion by said dense and heavy fog and cloud, and in such fog or cloud he was unable to turn the truck toward his right or left and avoid running into the overturned truck, and was unable to stop the truck in sufficient time to avoid a collision and head on crash with the overturned truck." The evidence establishes that this was so. Under these undisputed facts it will not do for plaintiffs to plead and claim that in driving as he did, Slade was in the exercise of due care. For it is settled by a long line of Louisiana cases2 that he was guilty of contributory negligence as a matter of law and may not recover for injuries resulting therefrom. Appellees' insistence, with citation of cases,3 none, however, from Louisiana, to the effect that it is negligence to envelope a highway with fog or smoke caused by the starting of negligent fires or the sudden eruction of steam, cinders or dust, and that one injured by that negligence concurring with the negligence of another may recover, will not avail them here. For in none of those cases, as here, was there contributory negligence completely barring recovery. Nor may appellees rely, as they seek to do, upon the doctrine of sudden emergency both because the evidence establishes without dispute that the deceased had full warning of the dangers in ample time to provide against them and because the defense of sudden emergency is never available where that emergency is the result of the claimant's previous contributory negligence.4 Slade had had long experience as a truck driver, more than half of it in driving over this identical route. He knew the I. C. C. Safety Rules for Motor Carriers, and particularly rule 231, providing: "Extreme caution in the operation of motor vehicles shall be exercised under hazardous conditions such as snow, ice, sleet, fog, mist, rain, dust, smoke or any other condition which adversely affects visibility or traction, and speed shall be reduced accordingly." Slade was not only warned by his own vision of the fog, but by Greer who turned his lights on and blinked them to indicate to Slade that there was danger ahead, and he also saw Greer enter and disappear in the fog. What is said in Lapeze v. O'Keefe, La.App., 158 So. 36, 37, is particularly apposite here: "The evidence shows that, just prior to entering the fog bank in which the accident occurred, he had passed through several small drifts, emerging therefrom almost as soon as he entered, and that he thought they were all of the same character. He had no reason to anticipate this. Instead of being lulled by these signals, they ought to have served as ample warning of greater danger ahead." Cf. Inman v. Silver Fleet and Rector v. Allied Van Lines, note 2, supra. In Campbell v. Texas & P. R. Co., La.App. 182 So. 339, the court said it did not find it necessary to determine whether the railway company was negligent in causing a dense smoke to envelope the highway for the contributory negligence of the plaintiff in driving into the smoke was the cause of the accident. Other cases in point are Illinois Central Railroad Co. v. Oswald, 338 Ill. 270, 170 N.E. 247; Anderson v. Byrd, 133 Neb. 483, 275 N.W. 825; Mitsuda v. Isbell, et al., 71 Cal.App. 221, 234 P. 928, and Domite v. Thompson, La.App., 9 So.2d 55, where the physical facts, as here, compelled the conclusion that the truck was being driven beyond safe speed.

The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.

HOLMES, Circuit Judge (dissenting).

I cannot concur in the majority opinion in this case without consciously invading the province of the jury. This is true because I think there was substantial evidence to support the verdict and all the findings of fact implicit therein.

The issue as to contributory negligence depends upon direct and circumstantial evidence. The direct evidence consists of the testimony of two eye witnesses, one of whom said that Slade was driving not more than ten miles per hour, the other twenty miles, when he met his death.

Under the evidence, different inferences might be drawn by fair and reasonable men as to the density of this fog and as to whether it was negligent to move within it at a speed not exceeding ten miles per hour. The district court did not err in refusing to decide, as a matter of law, that Slade was negligent in proceeding into a thin fog that suddenly became dense after he had traveled a short distance.