Evelyn Lundberg, Administratrix of the Estate of Stanley A. Lundberg, Deceased v. Rose Fuel & Materials, Inc.

302 F.2d 825

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 23, 1962
• Docket: 13521
• Status: Published

Opinions

KILEY, Circuit Judge.

This is a diversity wrongful death action based on a collision between defendant’s tractor trailer and a passenger automobile driven by plaintiff’s decedent. Verdict and judgment were for defendant, and plaintiff has appealed.

The collision occurred about 5:30 a. m. on State Road No. 219, a two-lane highway, south of its junction with State Road No. 20 near Osceola, Indiana. The tractor trailer was north bound in the east lane and decedent’s car south bound in the west lane. Decedent and his two passengers were killed instantly.

The only question on appeal is whether the District Court committed reversible error in refusing to give instructions upon plaintiff’s theory that the collision occurred because defendant’s driver negligently failed to keep a proper lookout, proximately causing the death of plaintiff’s decedent.

Plaintiff tendered two instructions on its theory. One was a general statement of the duty of an operator of a motor vehicle to maintain a reasonable lookout “for other traffic on the highway,” and that failure to do so was negligence. The other instruction was peremptory, applying the general rules to the case at bar.

The District Court found no evidence to support the proffered instructions. We think this was error. Taking as true the evidence favorable to plaintiff and drawing legal inferences in her favor, Hower v. Roberts, 8 Cir., 153 F.2d 726, 727 (1946), we find evidence to support plaintiff’s theory of failure of defendant’s driver to maintain a proper lookout. It follows that plaintiff was entitled to have the instructions given on that theory. Montgomery v. Virginia Stage Lines, U.S.App.D.C. 213, 191 F.2d 770, 772 (1951); Klas v. Yellow Cab Co., 7 Cir., 106 F.2d 935, 937 (1939). For the reasons given hereinafter, we need not detail the evidence supporting the instructions.

Despite the conclusion that the District Court erred in refusing to give the instructions proffered by plaintiff on “proper lookout,” the judgment must be affirmed.

The basic factual question at the trial was whether decedent, under defendant’s theory, was in the wrong north bound lane just before the collision so as to give rise to an emergency in which the truck driver had to decide within three seconds how to avoid decedent's car coming toward him on a collision course; or whether decedent’s car, under plaintiff’s theory, was in the right south bound lane into which the fatigued truck driver, failing to keep a proper lookout, veered into the wrong south bound lane.

The jury was properly instructed on the law of Indiana on this question, that is, a person who drives on the wrong side of a highway is guilty of negligence unless he shows justification or excuse. Burns Ind.Stat. § 47-2010 (1961 Supp.); Gamble v. Lewis, 227 Ind. 455, 85 N.E.2d 629, 633 (1949); Freeport Motor Cas. Co. v. Chafin, Ind.App., 170 N.E.2d 819 (1960).

In special interrogatories the jury found that decedent’s car was at some time in the wrong north bound lane as it “approached the scene,” and that “immediately before the collision” he turned his car from the north bound lane “on to or across the center line;” and that defendant’s driver turned to “his left onto or across the center line * * * immediately before the collision.” These interrogatories are founded on testimony of the truck driver and his testimony gives substantial support to the affirmative answers. The jury presumably found decedent on the wrong side of the road and no showing is made of justification or excuse.

The special finding, not contested as-such here, definitively locates decedent “immediately” before the collision on the wrong side of the road. This means that the jury gave greater credibility to-the truck driver's testimony than to that of Goss, plaintiff’s principal witness. The testimony of Goss supported her theory that decedent was on the right side of the road for the entire interval of three seconds after the truck driver “crested” a hill, south of the scene, and saw decedent’s headlights for the first time.

This being so, the question of “proper-lookout” is inconsequential. That theory of negligence presupposes that the truck driver did not see decedent’s car in the-south bound lane and veered into it without “justification or excuse.” But the jury decided decedent’s car was not in the south bound lane until he turned it from the north bound lane as the truck driver, in a quick response to the emergency decedent created, also turned into that lane.

We conclude that the District Court’s error is not ground for a retrial, since we have decided that the error does not affect a substantial right of plaintiff.¹

The judgment is affirmed.

1 . Fed.R.Civ.P. rule 61, 28 U.S.C.A.