Markiewicz v. Greyhound Corp.

358 F.2d 26
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 11, 1966
DocketNo. 15304
StatusPublished
Cited by4 cases

This text of 358 F.2d 26 (Markiewicz v. Greyhound Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markiewicz v. Greyhound Corp., 358 F.2d 26 (7th Cir. 1966).

Opinions

GRUBB, Senior District Judge.

This diversity of citizenship action to recover damages for personal injuries and related expenses sustained by plaintiffs was tried to the court. Final judgment was entered for the plaintiffs and against defendants, The Greyhound Corporation ; Robert L. Schlagenhauf; Contract Carriers, Inc.; and Joseph L. McCorkhill. The appeal is taken by Contract Carriers, Inc. and McCorkhill only.

On July 13, 1962, plaintiffs, John Anthony Markiewicz and Jennie Markie-wicz, were passengers riding on a Greyhound bus operated by Schlagenhauf in the eastbound lanes of United States Highway 40, a four-lane divided highway, between Stilesville and Belleville, Indiana. About 1:05 A.M., the bus struck the left rear of a Trailmobile trailer being pulled by a 1960 G.M.C. tractor operated by McCorkhill, as a driver for Contract Carriers, Inc.

The court found that the G.M.C. tractor had experienced loss of ability to produce normal forward speed for over 100 miles before it reached the point of collision. McCorkhill had made several stops to investigate the cause of the power failure and had contacted the dispatcher of Contract Carriers, Inc. at Anderson, Indiana, advising him that the maximum forward speed of his vehicle was about 30 miles per hour. The dispatcher authorized McCorkhill to operate the unit to its destination. McCorkhill was unable to effect any repair and proceeded eastward on Highway 40 at a speed approximating 20 to 30 miles per hour. Immediately prior to the collision, the rear of the trailer carried 9 red lights which were all properly lighted. At all times in question McCorkhill operated the tractor-trailer in the southernmost lane of the two lanes of Highway 40 designated for eastbound traffic.

The cause of the slowdown of McCork-hill’s vehicle was a progressive accelerator breakdown which diminished the amount of acceleration progressively. Before this collision, Contract Carriers, Inc. had experienced this type of defect with all of the tractors of this type and provided a spare part in the glove compartment for emergency repair.

Schlagenhauf, the operator of the Greyhound bus, had overtaken an eastbound tractor-trailer operated by one Louie L. Stone in the southernmost lane of Highway 40. After passing the Stone vehicle, Schlagenhauf operated his right turn signals, executed lighting courtesy signals to Stone, turned the bus from the northernmost lane to the southernmost lane in front of the Stone vehicle, and reviewed the passed vehicle in his rear view mirror. He observed red lights in front of him and started to return the bus to the northernmost lane to pass the vehicle. The collision occurred in the southernmost lane when the right front parts of the bus engaged the left rear of the trailer. Less than 10 seconds elapsed between the time Schla-genhauf passed the Stone vehicle and the instant of the impact.

At the time of and immediately prior to the collision, Schlagenhauf operated the bus at 75 miles per hour. He did not correctly associate the proximity of the red lights he observed in front of him after passing the Stone vehicle and did not correctly compare his speed with the speed of said lights during and immediately after passing the Stone vehicle. Schlagenhauf did not reduce the speed [28]*28of the bus or apply the brakes prior to the collision. He did not recognize that a collision was imminent until it was too late to avoid it, although he attempted ineffectively to turn the steering wheel of the bus further to the left when he realized the situation.

At the time in question, Highway 40 between Stilesville and Belleville, Indiana, and particularly at the point of the collision, was straight and level to rolling. The adjacent property was devoted to farming with a minimum, of farm residential dwellings, filling stations, and intersecting county highways. Posted speed limits authorized speed of buses at 65 miles per hour and speed of tractor-trailer units at 55 miles per hour. The eastbound traffic was normal to light. Road and weather conditions were optimal for that hour of traveling on a public highway.

The District Court made this finding:

“11. The low speed of the tractor-trailer unit as determined in these findings of fact impeded the normal and reasonable movement of traffic at the time and place in question and its slow speed was deceptive and misleading to the safety of those operators approaching from the rear of the unit including the operator of the bus and Mr. Stone, the operator of the other tractor-trailer, who was barely able to avoid the colliding vehicles.”

The court concluded that Schlagen-hauf, and, by application of the Indiana rule of respondeat superior, The Greyhound Corporation were guilty of causal negligence by operating the bus at an excessive speed and by failing to keep a reasonable lookout for other vehicles using the highway. The court further concluded that McCorkhill, and, by application of the doctrine of respondeat superior, Contract Carriers, Inc. were guilty of causal negligence in the operation of the tractor-trailer at such a low speed as to deceive other operators on the highway and to impede the normal and reasonable movement of vehicular traffic, in violation of Burns Indiana Statutes, 1962 Cumulative Supplement, Volume 8, Part 2, § 47-2006; in failing to perform the common law duty of ordinary care by operating the tractor with knowledge that it did not have sufficient power to tow the trailer at sufficient speed to avoid impeding the normal flow of traffic, and in towing the trailer under these circumstances without giving warning to vehicles approaching from the rear as to its low speed and presence on the road by flares, extra lamps, or other brightly illuminated devices.

Section 47-2006 of Burns Indiana Statutes, 1952 Cumulative Supplement, Volume 8, Part 2, provides as follows:

“No person shall drive a motor vehicle at such a low speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with the law.”

What constitutes illegal “low speed” under the statute involves a question of fact for the trier of the cause to be determined under the circumstances of the case. Pohlman v. Perry, 122 Ind.App. 222, 103 N.E.2d 911, 915 (1952).

Significant factors to be considered in the instant case are the time and opportunity available to Schlagenhauf for observing and evaluating the relative position and the speed of the Contractor Carriers, Inc. vehicle. The evidence shows that Schlagenhauf approached from the rear. His view of this vehicle had been obstructed by the intervening tractor-trailer operated by Stone. On clearing the Stone tractor-trailer, Schlagenhauf reached a position from which he could observe the lights mounted on the rear of the trailer towed by the Contract Carriers, Inc. tractor. At this time, his attention was also directed to the vehicle he had just passed. Sehlagenhauf’s belief that the lights ahead were no cause of concern to him and his action in returning the bus to the southernmost lane clearly indicate that he made an erroneous assessment of the situation.

[29]*29Although the mistake in judgment was that of Schlagenhauf, it does not follow that the collision, as a matter of law, must necessarily be attributed solely to him. His conduct in passing and giving attention to the Stone vehicle may be characterized as normal incidents of highway travel.

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Rosas v. Danilson
387 N.W.2d 767 (Supreme Court of Iowa, 1986)
Markiewicz v. Greyhound Corporation
358 F.2d 26 (Seventh Circuit, 1966)

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Bluebook (online)
358 F.2d 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markiewicz-v-greyhound-corp-ca7-1966.