Frederick Rogers v. United States

Second Circuit

Frederick Rogers v. United States

296 F.2d 122, 1961 U.S. App. LEXIS 3181

CourtCourt of Appeals for the Second Circuit

DecidedNovember 15, 1961

Docket27081_1

StatusPublished

Cited by2 cases

This text of 296 F.2d 122 (Frederick Rogers v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Frederick Rogers v. United States, 296 F.2d 122, 1961 U.S. App. LEXIS 3181 (2d Cir. 1961).

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Opinion

PER CURIAM.

This is an appeal from a judgment for the United States in an action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiff was struck by a United States Post Office vehicle on Eighth Avenue between 112th and 113th Streets in New York City as he emerged from behind a double-parked garbage truck, on which he was working, to cross the street. The trial court found no negligence on the part of the Post Office driver, and contributory negligence on the part of the plaintiff in crossing the heavily travelled street without taking due care to observe approaching traffic.

The trial judge explicitly found that the proximate cause of the accident was the contributory negligence of the plaintiff. Considering that under New York law the burden was on the plaintiff to show absence of contributory negligence, see, e. g., Nilson v. Oppenheimer, 260 App.Div. 670, 23 N.Y.S.2d 621 (1940), aff’d mem., 285 N.Y. 824, 35 N.E.2d 498 (1941), we see no reason to-disturb the trial judge’s finding. He chose to disbelieve the plaintiff’s -testimony, and we are not convinced that he committed “clear error.” Federal Rule of Civil Procedure 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

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PER CURIAM.

This is an appeal from a judgment for the United States in an action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiff was struck by a United States Post Office vehicle on Eighth Avenue between 112th and 113th Streets in New York City as he emerged from behind a double-parked garbage truck, on which he was working, to cross the street. The trial court found no negligence on the part of the Post Office driver, and contributory negligence on the part of the plaintiff in crossing the heavily travelled street without taking due care to observe approaching traffic.

The trial judge explicitly found that the proximate cause of the accident was the contributory negligence of the plaintiff. Considering that under New York law the burden was on the plaintiff to show absence of contributory negligence, see, e. g., Nilson v. Oppenheimer, 260 App.Div. 670, 23 N.Y.S.2d 621 (1940), aff’d mem., 285 N.Y. 824, 35 N.E.2d 498 (1941), we see no reason to-disturb the trial judge’s finding. He chose to disbelieve the plaintiff’s -testimony, and we are not convinced that he committed “clear error.” Federal Rule of Civil Procedure 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

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296 F.2d 122, 1961 U.S. App. LEXIS 3181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frederick-rogers-v-united-states-ca2-1961.

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