WASHINGTON, Circuit Judge.
Plaintiff-appellant brought this action to recover for injuries alleged to have resulted from hitting her head against the windshield of defendant's car when defendant, whose passenger she was, stopped his car suddenly to avoid collision with a car in front. Defendant sought summary judgment, chiefly on the basis of the following affidavit:
Defendant also submitted plaintiff's deposition, which did not in substance add to or vary from the foregoing, except that plaintiff said she thought that the car ahead made an unexpected turn back into traffic after it had begun to make a left turn. Plaintiff also asserted, in response to a question as to how defendant had been negligent, that if he had been far enough away from the car in front he would not have had to apply his brakes. She did not, however, state what the distance had been between the cars, and was generally unable to supply any details about the accident. Plaintiff did not offer any affidavits, but urged that defendant's showing was not sufficient to deprive plaintiff of a jury trial. The District Court granted defendant's motion for summary judgment, and this appeal followed.
Even where there is a rear-end collision, the driver of the second car is not necessarily negligent. Cardell v. Tennessee Electric Power Co., 5 Cir., 1935, 79 F.2d 934, 936-937; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 1935, 76 F.2d 718; Cram v. Eveloff, 8 Cir., 1942, 127 F.2d 486; Mandro v. Vibbert, 4 Cir., 1948, 170 F.2d 540. Clearly, a sudden stop short of a rear-end collision does not invariably involve negligence by the driver of the second car. But it does not follow that there can be no negligence in such a case, in respect of an injured passenger. Defendant's affidavit is silent as to numerous facts which might be relevant in a determination of the issue of negligence vel non. We are not told, for instance, his speed before he applied the brakes, the distance between his car and the car in front before the latter stopped, or whether he had an unobstructed view beyond the car in front so that he could reasonably infer that there was nothing in the way of that car. If the case were tried, defendant's answers on these points might be such as to justify a jury determination that he was negligent.
It is true that plaintiff's deposition does not make any assertion as to these matters. If, as one must on defendant's motion for summary judgment, one takes plaintiff's deposition as true and reads it in the light most favorable to plaintiff, it appears that plaintiff was not paying full attention to the driving situation and was rendered unconscious by the impact:
Therefore, any information as to the cause of the accident must come from defendant.
A driver has a duty to observe relevant conditions of the road; a passenger generally does not. Thus, though this is not, strictly speaking, a situation where the facts are peculiarly within the knowledge of the defendant, cf. Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, 471, we think similar considerations should apply: since the essential facts must come exclusively from defendant, plaintiff should have the opportunity to put the defendant on the stand at a trial. Nor, in a case of this sort, should plaintiff's failure to file a counter-affidavit "compel acceptance as true of facts alleged in the movant's affidavits." Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753, 759. Compare Garrett Biblical Institute v. American University, 1947, 82 U.S. App.D.C. 265, 267, 163 F.2d 265, 267.
Summary judgment is a useful device for disposing of meritless tort claims. But since on a trial of this case plaintiff may be able to elicit from defendant facts which defendant had a duty to observe and plaintiff did not and which may prove plaintiff's case, and since defendant's demeanor on the stand in testifying on these matters may also lead to inferences favorable to plaintiff,