Petroleum Carrier Corporation v. Snyder , 161 F.2d 323 ( 1947 )

HOLMES, Circuit Judge.

This is an action by appellees, brought under the Georgia law,¹ to recover damages from appellants for the wrongful death of their father. The latter received a. fatal injury when his left arm was crushed between the trailer of a large gasoline truck and the door of an automobile that he was driving. The truck was owned by the Petroleum Carrier Corporation and driven by D. A. Hudson, who were defendants below and are appellants here. The trial resulted in a verdict for the plaintiffs, and from a judgment in accordance with the verdict the defendants appealed.

The accident occurred about 10:30 o’clock at night, between Milledgeville and Sand-ersville, Georgia, on a straight stretch of paved highway. The paved part of the road was twenty feet wide, with usable dirt shoulders about five feet wide on each side. The left front fender and the left rear fender of the car came in contact with the back bumper or mud-guard of the trailer. There was an indentation on the outside of the left door of the car, and the door handle was bent back where the arm of the deceased was pressed against it.

The amended complaint alleged that the individual defendant was negligent in suddenly driving the truck from the right to the left side of the highway, thereby striking the decedent’s car and virtually severing his left arm; in operating the truck in excess of fifty miles per hour; in failing to dim the lights and blow the horn of the truck; in operating the truck at a speed greater than was reasonably safe; and in that, after the accident, the driver drove the truck away from the scene thereof without making any effort to render assistance to the injured occupant of the car.

The defendants denied these allegations of negligence.; and averred that the automobile driven by the deceased was being operated at an excessive rate of speed and on the wrong side of the road; that the defendant Hudson pulled the truck to his extreme right and as far off the pavement as he could safely do, but nevertheless the automobile driven by the deceased struck the left rear end of his trailer; that Hudson immediately stopped his truck, got out of the same, and walked back to render assistance, but the automobile driven by the deceased did not stop within his sight, and no one in the car came back to the scene of the accident. A graphic account of the occurrence is contained in the testimony of the witness Pryor, as follows:

“I was getting a cigarette out of a package. I was not looking up, and I heard Mrs. Wood say, ‘Look out. He’s on your side of the road.’ [This exclamation was relevant and competent as part of the res gestae.] I looked up and saw the lights. All just in a split second, and the first thing I thought of was pulling her over because it was on her side. I pulled her over and did not see very much of it. She was sitting right behind the driver at the time she screamed. I do not know whether she was sitting back or leaning forward. Between the time she screamed and the time the cars crashed was all in a flash. I did look up and saw the lights of the other car. It was just a side-swipe, more of a thud than anything else. I asked Snyder if it hurt his car. He said no, he didn’t think it did, but it seemed to numb his arm and he pulled off on the shoulder of the road, and as feeling came back into the arm he began screaming. We stopped and I walked around the front of the car and came around, and when I saw he was hurt I pushed him over on the other side of the car and asked Mrs. Wood if she could see what hit us. I did not have time to look and did not want to take-time. I wanted to get him to the hospital. I walked around the front of the car. * * * When I asked Mrs. Wood to look she certainly did. He did not stop, or she told me she did not see him. After the impact between the two vehicles T would say Snyder’s car could not have gone much over fifty or sixty feet. I did not measure it, but he was not going very fast. I would judge he was not going over thirty-five miles per hour at the time. Snyder stopped the car himself. * * * I don’t know whether the truck dimmed its lights or not. You see it had lights all around it, and I just glanced up and saw the lights and couldn’t have told whether they were on bright or what. I thought it was a truck of some kind. I thought we •were on our side of the road at the time. I don’t think Snyder made a drastic turn w-hen he pulled out on the side to get on the dirt shoulder. * * * I don’t remember how Snyder was driving. Every time I noticed he was on his side of the road.”

Pryor, Mrs. Woods, and the driver were the only occupants of the car. There was ample evidence to support the verdict, and the issues were clearly such as were properly submitted to the determination of a jury. The decisive questions on this appeal relate to the admissibility of evidence and the court’súnstructions to the jury.

Error is assigned to the admission of testimony by one Osborne, a witness for the plaintiffs, who gave instructions to Snyder (the deceased) about driving the car involved in the accident. Osborne testified that, “two or three or four days” before this accident, he told the deceased hot to drive the car over thirty-five miles an hour; that if he did, he would throw the bearings out because it was not getting sufficient oil; that if he drove it as much as a mile at a higher rate of speed, he would throw the bearings out for lack of oil. This was objected to as hearsay, hut the court held it to be admissible. The evidence was intended to corroborate the testimony of other witnesses for the plaintiff to the effect that the car was- not running over thirty-five miles an hour at the time of the collision, the speed of the car -being an important issue. This evidence was admissible under a Georgia statute, not as hearsay but as original evidence of a fact that was intended “to explain conduct and ascertain motives.” ²

The explanation as to why the car was being driven so slowly on a straight stretch of open highway was a relevant and material fact that the jury was entitled to know in considering the weight and credibility of appellees’ evidence as to the speed of the car.³ All evidence is admissible in the courts of the United States that is admissible under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court-is held.⁴

Georgia also has a statute admitting statements “accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” ⁵ This statute disposes, adversely to the defendants, of the exception to the court’s charge with reference to the alleged failure of the truck-driver to dim his lights. There was evidence to support this charge, since the witness Mrs. Woods testified that, immediately after they started from the scene of the accident, Snyder said that the driver did not dim his lights. This, she testified, was all he ever said, “because he was unconscious after that.” This evidence was admissible under the above-cited statute.

Error is also assigned to the refusal of the court below to instruct the jury that the plaintiff would not be entitled to recover if the deceased, as he approached the truck, was driving with his arm extending out the window of his car as much as six inches, without his hand on the steering wheel; and that this act was the direct and proximate cause of his death. This instruction was unsupported by the evidence in one respect, and in another it announced an incorrect principle of law; it was also ambiguous. With his left arm hanging out the window, his left hand could not have been on the steering wheel; moreover, we cannot approve an instruction that implies negligence as a matter of law from driving an automobile with one hand. The deceased was evidently driving with his right hand, and he handled the car in such manner, even after his left arm was disabled, as to bring it to a stop without the other occupants of the car knowing that he had been hurt. Another view is that the deceased may have held his hand out for the purpose of giving a signal. We think the issue as to contributory negligence was for the jury, and that the court did not err in its instructions to this effect.

The lower court’s action in reading the Georgia hit-and-run statute⁶ to the jury, and its instructions in connection therewith, are assigned as error. The appellant contends that there was “no credible evidence whatever” that the truck driver violated this section. Whether evidence is credible or not is a question for the jury, but the point is immaterial here because the court peremptorily instructed the jury that a violation of the statute would not warrant recovery by the plaintiffs, and that whatever testimony had been presented in respect to a failure to stop was to be considered by the jury with all the other testimony in the case in determining whether or not the other alleged acts of negligence were committed.

The statute lays an affirmative duty on the driver of a truck or car involved in a collision not to run away but to stop, identify himself, and render such assistance as may be reasonable or necessary; but in this instance the identity of the driver was discovered without trouble or expense, and there was no damage that resulted from want of reasonable or necessary assistance to the injured party. Therefore, the driver was hot liable for failure to stop even if he did run away; but he denied that he ran away, claiming that he was on the right side of the road and was not to blame for the collision in any respect. This was also the contention of the owner of the truck. In these circumstances, what the driver did immediately after the collision was relevant only to show whether he knew or thought that he was to blame. The court’s instruction on this subject was not prejudicial to the defendants, since it denied recovery for a violation of the statute and left to the jury only the question as to whether the conduct of the driver after the injury tended to incriminate him or to discredit his testimony. The general rule is that evidence of facts relevant to any issue before the jury is not rendered incompetent merely because those facts reveal that a crime may have been committed.⁷ We have been cited to no Georgia statute or decision to the contrary.⁸ The judgment appealed from is affirmed.

1 Sec. 105-1302 of the Georgia Code of 1933.

2 Sec. 38-302, Georgia Code of 1933, See. 5763, Georgia Civil Code of 1910; Wigmore on Evidence, Sec. 1789, citing said Georgia statute, “Whenever any act may be proved, statements accompanying and explaining that act made by or to the person doing it may be proved if they are necessary to understand it.” Stephen’s Digest of Evidence, Art. 8. See also Reynold’s Theory of Evidence, Sections 8 and 11. Thus, the Georgia statute seems to be merely declaratory of the general rule of evidence on the subject.

3 Cf. Stamps v. Newton County, 8 Ga. App. 229, 231, 68 S.E. 947; Duren v. State, 158 Ga. 735, 124 S.E. 343; Wigmore on Evidence, Sec. 1789, including note at bottom of page 821.

4 Rule 43(a) of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c; Hartford Accident & Indemnity Co. v. Olivier, 5 Cir., 123 F.2d 709; Milwaukee Mechanis Ins. Co. v. Oliver, 5 Cir., 139 F.2d 405.

5 Sec. 38-305, Georgia Code of 1933, Sec. 5766, Georgia Civil Code of 1910.

6 Sec. 68-308, Georgia Code of 1933.

7 Vol. 1, Wigmore on Evidence, See. 216, pp. 457 et seq. The rule is the same for criminal as for civil cases. P. 458.

8 Springer v. Adams, 37 Ga.App. 344, 140 S.E. 390, is relied upon by the appellants, and Battle v. Kilcrease, 54 Ga.App. 808, 189 S.E. 573, by the appellees. The latter case was examined and distinguished by the Supreme Court of Georgia in Georgia Power Co. v. Shipp, 195 Ga. 446, 24 S.E.2d 764, 766, wherein the court said:

“The statute is a penal one. * * * Its violation was made a crime, and as written the penally is assessed only against the operator, without reference to the owner of the vehicle involved or the employer of the driver, as the ease may be. ‘Unless otherwise provided, such a statute applies only to the operator of the motor vehicle, and does not create any liability on the part of the owner who is not the operator; if, however, the owner is present and the vehicle is being operated under his control, he is liable for non-compliance with the statute, unless the operator disobeys his instructions.’ 42 C.J. 385, $ 1450. The provisions of a statute similar to that under consideration were invoked in a civil action for the death of a boy struck by a truck, in the case of Nager v. Reid, 240 Mass. 211, 133 N.E. 98, where it was held: ‘Section 24 of G.L. c. 90, making it a criminal -'offense for the driver of an automobile to go away without stopping and making known his name, residence and the number of his vehicle, after knowingly causing injury to a person, relates only to the operator, and does not create any liability, criminal or eivü, on the part of an owner who is not the operator.’ In our investigation we have examined Battle v. Kilcrease; 54 Ga.App. 808, 189 S.E. 573 and, without regard to the soundness of certain statements made in division two of the opinion in that ease, wo do not consider that the rulings there made are applicable to facts such as here presented.”