Hinton v. Dixie Ohio Exp. Co. , 188 F.2d 121 ( 1951 )

SIMONS, Circuit Judge

(dissenting).

The appellant, with a 7 foot wide truck trailing another truck by means of a tow bar, was trying to pass an 8 foot wide truck and trailer upon a downgrade. He was familiar with the road, knew that it narrowed at the bottom and he could see the guard rails when he undertook to; start to pass some 400 yards away. He should have expected that the Dixie truck would be compelled to swerve somewhat to the left, that speed would be accelerated upon a downgrade, and that there should be some sway of the trailer and his own tow. My judgment is that appellant’s operation was contributorily negligent assuming evidence of primary negligence.

While I agree that contributory negligence must be shown to have been a proximate cause of the accident and that this is ordinarily a question for the jury, it seems to me that the causal relationship was conclusively established by the appellant’s own evidence. He failed to blow his horn although required to do so by Kentucky law in passing another vehicle. The accident occurred in the daytime and ordinary experience on the highway should have warned him that merely blinking his lights was not a sufficient notice that he intended to pass, even if such signaling may be depended upon at night. If there is any persuasiveness in the observation of the Kentucky Court that “negligence cannot be measured in inches”, whatever that may mean, then it may also logically be said that “due care may not be measured by inches”.

I would affirm the judgment.