Griffy v. Havey (201 F.2d 501, 1953)

MAJOR, Chief Judge.

Marilyn Griffy, a passenger in an automobile driven by Kenneth G. Rush, brought suit against Richard S. Havey and American Indemnity Company for damages because of injuries sustained in a collision between the automobile driven by Rush and one driven by Havey. On motion by Havey and the Indemnity Company, Rush and his insurer, United States Fidelity and Guaranty Company, were brought into the suit as third party-defendants. As usual in such cases, plaintiff alleged that the collision was the result of the negligence of Havey, while the latter and the Indemnity Company in their third party complaint alleged that the collision was the result of the negligence of Rush.

The ca.se was tried to a jury, which returned a verdict in favor of plaintiff and against the defendants Havey and the Indemnity Company, which judgment has been satisfied. Prior to the submission of the case to the jury but after hearing of the testimony, the District Court directed a verdict in favor of Rush and his insured (third party-defendants) on the grounds that “there was no credible evidence upon which a jury could have found any causal negligence on the part of the third party defendant and that no evidence had been produced from which an inference could be drawn that Kenneth Gene Rush had breached any duty owing to the plaintiff, Marilyn Griffy * * *»

The appeal is from the action of the court thus stated and involves solely the failure of the trial court to submit to the jury the question relative to the negligence of Rush.

The record reveals no dispute as to the factual situation. The accident occurred on November 26, 1950, about 1 p. m., on United States Highway 51, in Dane County, Wisconsin. Rush, accompanied by plaintiff, was driving north, and Havey, accompanied by his wife, was driving south. The highway was the usual concrete two-lane highway, with shoulders 3 to 4' wide on each side and with a W ditch on each side. The highway, as well as the shoulders, was covered with snow, and all witnesses agreed that it was “very slippery.” The collision occurred about 15