LEWIS, Circuit Judge.
Appellant was plaintiff below in a personal injury damage suit arising from an automobile truck collision involving both plaintiff and defendant as drivers. This appeal is from a judgment of no cause of action entered upon a jury verdict in the District of Kansas and presents the single question of whether or not the trial court erred in denying plaintiff’s timely motion for new trial. The rule governing appellate review in such case is clear: The ruling should not be disturbed unless a clear abuse of discretion is shown. Gerson v. Anderson-Prichard Production Corp., 10 Cir., 149 F.2d 444; Marshall’s U. S. Auto Supply, Inc. v. Cashman, 10 Cir., 111 F.2d 140; Stofer v. Montgomery Ward & Co., 8 Cir., 249 F.2d 285; Hobart v. O’Brien, 1 Cir., 243 F.2d 735. The sound exercise of judicial discretion may be tested by consideration of whether or not the grounds advanced for new trial make it reasonably clear that substantial justice has not been done and that a new trial would not constitute relitigation. Wilson v. Nu-Car Carriers, Inc., D.C.Pa., 158 F.Supp. 127, affirmed, 3 Cir., 256 F.2d 332. The grounds here urged in support of a new trial arise from an unusual and unfortunate situation not attributable to fault of the court, counsel or the jury. We believe that under the circumstances the trial court should have granted a new trial in the interest of justice.
In determining the proper verdict to be that of no cause of action the jury considered the testimony of but three witnesses relating to the physical facts of the accident: plaintiff; a Kansas state trooper; and the witness Parker, sheriff of Graham County, Kansas, where the accident occurred.1 Plaintiff testified that the collision occurred on a relatively straight and level stretch of highway during a snow storm; that he first observed defendant’s car when it was traveling in a normal manner on the right side of the road, the car seemingly being under control; that when 30 to 35 yards away, defendant went into a spinning skid and ended with her car crashing into his truck, head on, in his line of traffic. The state trooper testified that he could not determine the point of impact from his investigation of the accident scene; that there was new snow upon the highway but that he had answered the accident call at a speed of 40 miles per hour and had no difficulty in keeping his car under control.
The defense consisted of an attack upon plaintiff’s credibility and the insertion of the issue of unavoidable accident. The latter is, of course, a method of negativing actionable negligence upon the part of the defendant and the defense upon which the appellee placed her principal reliance. This is apparent both from defense counsel’s opening statement and closing argument. Illustrative excerpts from the opening statement include :
“Our evidence will show that there had been snow in this area before, and that on the day in question, and Sheriff Parker will so testify, that the graders had been working, but there was snow packed on the road there at the scene of the accident, in addition to the fresh snow that was falling immediately before the time the collision occurred.”
“We think the evidence will show that this was a black-top highway that sloped, more or less — I mean it is not absolutely level, it has a slope to it — that, as the defendant went along this roadway, it became covered with a new, smooth layer of snow, by which the sides and the [580]*580center of the highway both become obstructed; that, in driving down the roadway, she was unaware of this hard-packed snow underneath the new blanket of snow, and, as was the plaintiff, undoubtedly, that one or both of the vehicles hit this hard-packed snow, and the new snow made the highway slick, and that one or both of the vehicles slid out of control and that this accident occurred.”
“And I think, when you have heard all of the evidence, you will conclude that the cause of this accident was not the negligence of the defendant at all, but it was caused by the condition of the highway, * * *»
In the closing argument counsel stated:
“Now what is the evidence of the unbiased witnesses, the ones who have no interest whatever in this lawsuit? Ivan Parker came up here, and he explained to you, did he not, about how the trees were on the side of the road? He explained to you how there were these ridges or little places of ice or snow that had piled up there on the roadway. If you think Ivan Parker came down here under subpoena from Hill City, Kansas, to tell you something that wasn’t true, then I don’t know what’s happened to our law enforcement agencies in this country. He had no reason to lie about it one way or the other. He said he was down there that very day in the morning, getting cattle off the road, and he said there was that snow there.”
“I say to you, as nearly as I can figure out from the evidence, one or the other or both of the cars went out of control and skidded on the highway down there. It was slick. There was this other snow, it was packed, and the Court will tell you that the mere fact, and I think this is important, the mere fact that one car or the other slides off on a slippery highway and goes to the wrong side of the road, that fact, in and of itself, get that, the mere fact that one car slides on a slippery highway and goes across on the wrong side of the road or goes out of control, that, in and of itself, is not negligence and does not entitle the other party to recover.”
“In the course of human life, sometimes accidents do happen for which nobody is responsible. Some of you have been out on the farm, lived on the farm, and you know accidents happen, and sometimes there are accidents for which nobody was responsible. I can’t prove it, I wasn’t there. In my own mind, that roadway was covered with a blanket of snow; sure, you could see the shoulders, it was covering these little ridges or hills of ice, whatever you want to call it, hard-packed snow. It was set snow, she came down there, or he came down the road, I don’t know which car skidded first, whether one or both of them did, and it was a very terrible trap down there when the snow was laid over the top of that — or those little hills of ice, and the accident was caused not by what the defendant in this lawsuit did.”
The only evidence in the record showing the existence of a pre-existing under-packed layer of ice and snow beneath the surface snow came from the witness Parker. Without detailing this witness' testimony we think it a fair summary to state that he intended to give and did give the impression to the jury that in the general area of the collision and at the actual point of collision a peculiar physical condition existed: unmelted ice covered by fresh snow so as not to be visible. And he supported his statement by testifying that the road was sheltered at that point by trees on both sides which prevented the normal melting that occurred elsewhere.
Free access — add to your briefcase to read the full text and ask questions with AI
LEWIS, Circuit Judge.
Appellant was plaintiff below in a personal injury damage suit arising from an automobile truck collision involving both plaintiff and defendant as drivers. This appeal is from a judgment of no cause of action entered upon a jury verdict in the District of Kansas and presents the single question of whether or not the trial court erred in denying plaintiff’s timely motion for new trial. The rule governing appellate review in such case is clear: The ruling should not be disturbed unless a clear abuse of discretion is shown. Gerson v. Anderson-Prichard Production Corp., 10 Cir., 149 F.2d 444; Marshall’s U. S. Auto Supply, Inc. v. Cashman, 10 Cir., 111 F.2d 140; Stofer v. Montgomery Ward & Co., 8 Cir., 249 F.2d 285; Hobart v. O’Brien, 1 Cir., 243 F.2d 735. The sound exercise of judicial discretion may be tested by consideration of whether or not the grounds advanced for new trial make it reasonably clear that substantial justice has not been done and that a new trial would not constitute relitigation. Wilson v. Nu-Car Carriers, Inc., D.C.Pa., 158 F.Supp. 127, affirmed, 3 Cir., 256 F.2d 332. The grounds here urged in support of a new trial arise from an unusual and unfortunate situation not attributable to fault of the court, counsel or the jury. We believe that under the circumstances the trial court should have granted a new trial in the interest of justice.
In determining the proper verdict to be that of no cause of action the jury considered the testimony of but three witnesses relating to the physical facts of the accident: plaintiff; a Kansas state trooper; and the witness Parker, sheriff of Graham County, Kansas, where the accident occurred.1 Plaintiff testified that the collision occurred on a relatively straight and level stretch of highway during a snow storm; that he first observed defendant’s car when it was traveling in a normal manner on the right side of the road, the car seemingly being under control; that when 30 to 35 yards away, defendant went into a spinning skid and ended with her car crashing into his truck, head on, in his line of traffic. The state trooper testified that he could not determine the point of impact from his investigation of the accident scene; that there was new snow upon the highway but that he had answered the accident call at a speed of 40 miles per hour and had no difficulty in keeping his car under control.
The defense consisted of an attack upon plaintiff’s credibility and the insertion of the issue of unavoidable accident. The latter is, of course, a method of negativing actionable negligence upon the part of the defendant and the defense upon which the appellee placed her principal reliance. This is apparent both from defense counsel’s opening statement and closing argument. Illustrative excerpts from the opening statement include :
“Our evidence will show that there had been snow in this area before, and that on the day in question, and Sheriff Parker will so testify, that the graders had been working, but there was snow packed on the road there at the scene of the accident, in addition to the fresh snow that was falling immediately before the time the collision occurred.”
“We think the evidence will show that this was a black-top highway that sloped, more or less — I mean it is not absolutely level, it has a slope to it — that, as the defendant went along this roadway, it became covered with a new, smooth layer of snow, by which the sides and the [580]*580center of the highway both become obstructed; that, in driving down the roadway, she was unaware of this hard-packed snow underneath the new blanket of snow, and, as was the plaintiff, undoubtedly, that one or both of the vehicles hit this hard-packed snow, and the new snow made the highway slick, and that one or both of the vehicles slid out of control and that this accident occurred.”
“And I think, when you have heard all of the evidence, you will conclude that the cause of this accident was not the negligence of the defendant at all, but it was caused by the condition of the highway, * * *»
In the closing argument counsel stated:
“Now what is the evidence of the unbiased witnesses, the ones who have no interest whatever in this lawsuit? Ivan Parker came up here, and he explained to you, did he not, about how the trees were on the side of the road? He explained to you how there were these ridges or little places of ice or snow that had piled up there on the roadway. If you think Ivan Parker came down here under subpoena from Hill City, Kansas, to tell you something that wasn’t true, then I don’t know what’s happened to our law enforcement agencies in this country. He had no reason to lie about it one way or the other. He said he was down there that very day in the morning, getting cattle off the road, and he said there was that snow there.”
“I say to you, as nearly as I can figure out from the evidence, one or the other or both of the cars went out of control and skidded on the highway down there. It was slick. There was this other snow, it was packed, and the Court will tell you that the mere fact, and I think this is important, the mere fact that one car or the other slides off on a slippery highway and goes to the wrong side of the road, that fact, in and of itself, get that, the mere fact that one car slides on a slippery highway and goes across on the wrong side of the road or goes out of control, that, in and of itself, is not negligence and does not entitle the other party to recover.”
“In the course of human life, sometimes accidents do happen for which nobody is responsible. Some of you have been out on the farm, lived on the farm, and you know accidents happen, and sometimes there are accidents for which nobody was responsible. I can’t prove it, I wasn’t there. In my own mind, that roadway was covered with a blanket of snow; sure, you could see the shoulders, it was covering these little ridges or hills of ice, whatever you want to call it, hard-packed snow. It was set snow, she came down there, or he came down the road, I don’t know which car skidded first, whether one or both of them did, and it was a very terrible trap down there when the snow was laid over the top of that — or those little hills of ice, and the accident was caused not by what the defendant in this lawsuit did.”
The only evidence in the record showing the existence of a pre-existing under-packed layer of ice and snow beneath the surface snow came from the witness Parker. Without detailing this witness' testimony we think it a fair summary to state that he intended to give and did give the impression to the jury that in the general area of the collision and at the actual point of collision a peculiar physical condition existed: unmelted ice covered by fresh snow so as not to be visible. And he supported his statement by testifying that the road was sheltered at that point by trees on both sides which prevented the normal melting that occurred elsewhere. He also stated that he himself had been over the area the very morning of the accident and before the [581]*581new snow and had actually had his car slip (presumably without fault on his part).
In an affidavit filed in support of new trial Sheriff Parker admitted his testimony was in error and expressed concern that he might have misled the jury. He states that he does not know if unmelted snow existed at any point in the immediate vicinity of the accident; that trees do not shelter the point of collision on both sides and that, in effect, he should limit his testimony to the fact that ice existed one-half mile away and that his car skidded in that area.
The case was submitted to the jury upon instructions which included an explanation of unavoidable accident. The instructions were manifestly correct and although defendant now places emphasis upon plaintiff’s lack of exception to the instructions we do not believe such argument probes the essence of plaintiff’s complaint on appeal. The grounds urged for new trial do not point to an error in the instructions but to a factual error upon which the defendant placed her reliance in urging the jury to apply the instruction. If in reality underlying ice existed at the point of collision so as, to quote defense counsel, to constitute a “trap” for the careful motorist such a defense should not be premised upon Sheriff Parker’s testimony. His testimony was in error as far as his personal knowledge was concerned. And, since his testimony is the only evidence of underlying ice in the present record, a retrial will not constitute simple relitigation of identical legal and factual issues.
Sheriff Parker’s affidavit indicates that he discovered that his testimony was in error as he retraveled the accident area on his way home from the trial. His good faith in giving original testimony and in pointing out his error by affidavit is not questioned. Counsel could not have anticipated the error nor its discovery in the exercise of reasonable diligence. And upon retrial Sheriff Parker’s testimony would be neither cumulative nor impeaching in nature but would allow consideration of this witness’ knowledge only to the extent that he now realizes it was worthy. Since we share the witness’ concern that he misled the jury relating to an issue upon which the case may well have turned we hold that the trial court should have, in the exercise of a sound judicial discretion, granted a new trial.
Reversed with directions to grant a new trial.