Lucy Blynn Marsden and Jack Marsden v. Sebastiano O. Patane

380 F.2d 489, 11 Fed. R. Serv. 2d 1240, 1967 U.S. App. LEXIS 6747

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 13, 1967
• Docket: 22521_1
• Status: Published

Opinions

RIVES, Circuit Judge

(dissenting):

In my opinion the entry of summary judgment for the plaintiff denied to the defendants their constitutional right to a trial by jury. In the federal courts that right is to be determined as a matter of federal law in diversity as well as other actions. Simler v. Conner, 1963, 372 U.S. 221, 222, 83 S.Ct. 609, 9 L.Ed.2d 691. The sufficiency of the evidence to raise a question of fact for the jury is controlled by federal law. 5 Moores Federal Practice § 38.10, n. 5.

Mrs. Marsden had never before driven in the area where the collision occurred. She simply failed to see the stop sign. So far as the affidavits disclose, one sign constituted the sole warning. There was nothing else to warn a motorist of the necessity of stopping, such as approach warnings of a stop ahead or apparent differences of width or use of the streets. Mrs. Marsden had driven on Fourteenth Street without stopping for several blocks before getting to the intersection. Boni-fay, the driver of the car on Blount Street, had stopped at a four-way stop sign just two blocks before the collision. Mrs. Marsden was approaching from Bonifay’s right and, not seeing the stop sign, she assumed until too late that she had the right of way. She testified that “I had been watching, since there was one car directly in front of me and since it appeared to know exactly where it was going.” That car proceeded through the intersection without stopping, and Mrs. Marsden attempted to continue following it. When the stop sign had been erected and whether it was generally observed does not appear. Under all of the circumstances, Mrs. Marsden’s simple failure to see the stop sign does not, I submit, present such a conclusive or compelling inference of negligence as that no reasonable man could find to the contrary.

I doubt also whether there was any competent evidence that the collision caused the death. There was no medical evidence. Mr. Patane’s affidavit stated that his daughter “ * * * died November 22, 1963, from injuries received by her in an automobile collision November 20, 1963 * * The only evidence as to the severity of his daughter’s injury is contained in Bonifay’s affidavit that she “was thrown from the car and seriously injured and later died.” The affidavits are not competent evidence of opinion testimony that would not be admissible if testified to at the trial. Rule 56(e), Fed.R.Civ.P.; 6 Moores Federal Practice § 56.22 [1], p. 2808, n. 24. I think that the case was for the jury and, therefore, respectfully dissent.