Citations
- 209 F.2d 35
Full opinion text
PARKER, Chief Judge.
These are cross appeals in a motor vehicle collision case. The plaintiff in the court below was Herman S. Burcham, who was driving one of the motor vehicles involved in the collision, and the defendants were J. P. Stevens & Company, Incorporated, the owner of the other vehicle, and Clifford Dewey Lanier who was driving it. The plaintiff asked damages of the defendants on account of personal injuries sustained in the collision, which he claimed was due to the negligence of the defendants. The defendants denied negligence and claimed that the collision was due to the negligence of plaintiff. The defendant J. P. Stevens & Company filed a cross claim against plaintiff to recover for damages sustained by its motor vehicle in the collision. The case was tried before a jury which returned a verdict for plaintiff in the sum of $7,500 and denied recovery on the cross claim. The trial judge granted a motion of defendants for judgment non obstante veredicto based upon a motion made for a directed verdict at the conclusion of the evidence but denied motion of J. P, Stevens & Company for such a judgment on its cross claim. From judgment entered in accordance with this ruling both plaintiff and J. P. Stevens & Company have appealed.
It is well settled that on a motion for a directed verdict or on motion for judgment n. o. v. based on such motion, the evidence must be considered in. the light most favorable to the party against whom the directed verdict or the judgment n. o. v. is asked, that any conflict in evidence must be resolved in his favor and that every conclusion or inference that can be legitimately drawn therefrom in his behalf must be drawn. When this rule is applied here, we think that the case was one for the jury on the plaintiff’s claim, as well as on the cross claim of the defendant J. P. Stevens & Company, and that there was error in entering judgment for the defendants in the face of the jury’s finding of a verdict in the sum of $7,500 in favor of plaintiff.
There was evidence tending to show that plaintiff was a truck driver of long experience. On the morning of the collision he was driving an empty gasoline tractor-trailer and was proceeding west-wardly on highway 360 about four miles east of Amelia, Virginia. It was early in the morning and he was going to a roadside restaurant, known as “Dick’s Place”, to get his breakfast before driving to Richmond. Dick’s Place was on the south side of the highway and, when he arrived opposite it, he drove to the right off of the hard surface and stopped to allow cars which were following him to pass, turning on his signaling device, which indicated by a light and arrow on his left front fender that he was making a left turn. After the cars had passed, he started across the hard surfaced highway, which was 22 feet wide, to Dick’s Place on the other side. As he started he looked and saw the tractor-trailer of defendants approaching from the west around a long curve but at a distance of from 700 to 1000 feet. Although it was approaching at a rapid rate of speed, plaintiff thought that he had ample time to get across the highway in safety before it could traverse the intervening distance, and was crossing with both hands upon the wheel and with his attention directed towards Dick’s Place, where one or more cars were parked which it was necessary for him to avoid. When the cab of his tractor-trailer had barely gotten off the hard surface, it was struck by the cab of defendants’ tractor-trailer, which had swerved to the right to avoid striking his gasoline tank.
Defendants’ tractor-trailer was evidently traveling at a high rate of speed, for it left skid marks upon the highway 321 feet long, and, when the evidence is viewed in the light most favorable to plaintiff, it appears'.that plaintiff was going slowly and thát defendants’t driver should have seen .from a distance