*1 each de- were train models electric The gauge, model indictment al.,
scribed David L. et Plaintiffs- MORRISON established and color. Witnesses Appellees Cross-Appellants, number out numbers as set all but one v. ending let- to include incorrectly failed FRITO-LAY, INC., Marilyn L. engines identify the first “E” to ter Taggart, Defendants-Appellants reversing with an automatic being equipped Cross-Appellees. number on one of model The mechanism. digits engines two trans- also had these JOHNSON, Margaret E. opening state- In counsel’s defense posed. Plaintiff-Appellee, Griffin stipulate he offered ment possession, model trains had these BOSTWICK, Defendant-Ap Roseland M. lines, and carried them across state he Appellee. pellant prove need not government that “[t]he he main- questions, The crucial that.” No. 75-1941. lack of tained, were value and Griffin’s of Appeals, Court United States Af- trains were stolen. knowledge that the Fifth Circuit. numbers disclosed that the model proof ter Jan. incorrect, moved for mis- defendant upon problems trial “obvious based Rehearing Rehearing En Banc Denied alleged in the indictment.” descriptions as 16, 1977. March motion, noting The court overruled were not such as would errors of such or misinform a collector mislead types who traded in these or one
equipment On as the defendant. engines, such entered into
following day, defendant trial prosecution with the stipulation for the indict- models “made the basis
train transported across state lines
ment” were by him.
and sold substantial variances did not affect
rights. They not amount to the omis- the crime any essential element of
sion in numbers
charged. They were mistakes more. The defendant from out-
and no errors, not misled and his
set was predicated upon an in- was never
defense surprised, basis. He was not
consistent stipulation prejudiced.
misled any possible problem as to future
solved
prosecution. remaining assignments er-
Defendant’s discussion.
ror do not merit
AFFIRMED. *3 RIVES, GEE, GOLDBERG
Before Judges. Circuit Judge: RIVES, Circuit 18, evening 1971, of January On at m., truck, approximately p. van-type 6:30 a by Frito-Lay, Inc., owned defendant being Taggart, L. by driven M. defendant proceeded it became disabled as southward Mississippi Highway two-lane Columbus, Mississippi. coasting After near minutes, Tag- for two or three in neutral gart brought stop the truck a the side leaving of the road “at least” two feet of body the van’s protruding paved onto portion highway. 121, 585.) (App. Taggart turned off the headlights, truck’s flasher, engaged emergency re- inside van attempting mained locate engine’s the cause of the failure. (App. 586.) Within a few after minutes the truck an stop, Opel had come a automobile being driven by southward the defendant Roseland Bostwick collided the rear van. (App. 163.) end of the impact completely knocked the van off Taggart road and forced paved was (App. 86, 90.) Taggart of the van. rear actually did not see the Bostwick therefore Mrs. van. Bostwick ren- car strike was Gholson, Crowell, M. W. Hunter Co- John impact unconscious no dered had lumbus, Miss., Welch, III, Roger W. C. Scott subsequent recollection of events. Forman, Jackson, Landrum, L. Richard 172-73.) (App. The exact location of the Miss., Inc., Frito-Lay, et al. for Opel immediately after this colli- Geeslin, Columbus, Miss., Gary L. unknown, for R. M. it eventually sion is came Bostwick. facing high- rest south center 432-33.) way. (App. Pogue, Jonas, Ralph D. E. Aber-
Michael deen, Miss., Blasingame, B. Nickolas Gary the Taggart-Bostwick minutes of Within Athens, Ga., Chilivis, L. Morri- David P. nearby.1 collision another collision occurred son, et al. being by Dwight A Chevrolet driven C. moving Point, Miss., Laughlin, High- southward down Tubb, J. West
Thomas Sims, Reeves, Columbus, way being collided with Pontiac driv- Darrell Shields Miss., Tepper proceeding E. en Max was M. Johnson. your rolling yet stop vehicle had not was while was the van testified impact Opel, rolling being he A. stopped when heard hit not? from Yes, (App. 613.) suppose And it I so.” another collision. “Q. the sounds sides of the pas- and a road with a gouge direction. mark be- opposite instantly. (App. 427.) tween them. were killed Patrolman in his car Pre- senger vost estimated that Laughlin gouge mark occupants four There approximately 75 feet north of the spot nei- car, whom survived. two of where had come to rest. paying attention of the survivors ther (App. Laughlin found the auto- accident; _He at the time of road facing northeastward, mobile completely light on neither could shed consequently blocking the southbound lane of the high- Laughlin was accident occurred. how way, and the Pontiac pointing remaining passen- instantly and killed northeastward with the rear end of the car Morrison, hours later.2 died three ger, David obstructing the partially northbound lane of brought actions3 were Wrongful death 408-09, 414, To deceased, Morrison, family of David by the south of the vehi- *4 widow of Max by the cles, Prevost found the Opel Bostwick fac- is- for trial. The first crucial consolidated southward and ing straddling the centerline there existed a causal was whether sue highway Frito-Lay and the van com- relationship Taggart-Bostwick the between pletely highway off the to the west. (App. col- Tepper-Laughlin and the fatal collision 415, 432-33.) Prevost located a set of skid plaintiffs’ theory was The Morrison lision. began marks in the northbound lane Opel Bostwick Tepper either struck the that edge near the east of the pavement and it, that suddenly to avoid or swerved close to the rear the Bostwick alleged collision or Tepper-Bostwick for some 75 gradually continued feet com- Tepper-Laughlin the fatal miss caused near centerline, nearer the ing terminating at accident. mark in gouge the the northbound lane.4 trial derived introduced at was Evidence A and independent investigation second investigations of the independent two from by Safety conducted Air was Force Techni- these was conducted collision. One of fatal Hawkins,5 who cian arrived on the scene Highway Grady Patrolman by Mississippi thirty approximately minutes after the ac- Prevost, shortly who after the acci- arrived findings His differ in cident. several re- Laughlin He dent. Chevro- those of Prevost. spects impor- from Most opposite Pontiac were on tantly, let and Hawkins testified that the skid mentioned, previously Company. brought had no anee 2. As The other action was collision; Taggart was Margaret Tepper, recollection of the fatal Mrs. E. Administratrix of back of the van at the time of the in the Tepper, against Bostwick, the estate of Max collision; and the surviv- Inc., two Taggart, Frito-Lay, and the Estate of Laughlin paying car were not atten- ors in the Dwight Laughlin. C. road, although they testified tion to change they a swerve or di- did not feel 410, 439.) (App. Prevost testified as to the Laughlin automobile. Jackie in the rection gougemark: location of the exact About “Q. Harris, passenger give car did far how from the centerline was it in that lane? testimony: eyewitness some got eight (App. A. I it two feet and inches.” looking down because the “. . .1 wasn’t 440.) maybe headlights I looked at them for —after they coming second seemed to be a half a 18, 1971, January 5. On Hawkins had been an us, naturally my right at attention Safety Air Force Technician about five or six And, course, headlights. I focused years, is since 1965. His duties included much to think about it have too time didn’t investigating involving automobile collisions (App. they hit us.” before personnel in base which there was as much as to on which side of the was unable state Harris damage government property, injury $100 to to occurred, collision nor was he able to road personnel, fatality. capacity or a It was in that testify the location of the other vehicles. as to upon investigate he was “called an father, occurring Highway brought mother and accident 373 south of 3. One Morrison, deceased, against January David Fri- Columbus Air Force Base on 1971.- sister ” Inc., (App. 175-76.) Taggart, occupants Laugh- to-Lay, All M. L. Roseland Dwight Tepper, personnel. the Estate of lin automobile were Air Force Estate of Max 177, 283.) Laughlin, (App. American Life Insur- and Modern C. turned in against favor of the Morrisons terminat- northward ran marks Taggart and Bost- Frito-Lay, com- rather than Opel, defendants ing 179-80.) granted point. (App. The trial court mencing at wick. reducing by twenty- north- this latter sum that at the n. o. stated further Hawkins ($25,000), thousand dollars which was swerved off marks five end skid ern tire had awarded the Mor- but that he found amount to the east pain suffering car re- for the of David which indicated risons tracks toward headed Morrison.6 turned 205-06, 226-27.) Haw- (App. site.” “crash Tag- appeal On ap- the “crash site” found that kins urge and Bostwick gart, end of from the 130 feet (1) in a. failing court erred: to declare trial also lo- (App. Hawkins skid marks. upon receipt of an- trial inconsistent new pavement at the gouge marks in cated the special interrogatories verdict swers site,” however, Pa- Highway unlike “crash jury pursuant provi- to the submitted Prevost, Hawkins placed trolman F.R.Civ.P.; 49(a), Rule (2) by sub- sions high- the southbound lane of the marks mitting an interroga- additional 221-22.) way. having received an- tory inconsistent interrogatories propounded judge submitted the issues The district swers (3) failing their jury; of a to sustain special in the form judg- Rule for directed verdict and for interrogatories provided motions *5 Tag- n. o. v. reason of failure on the jury The found that 49(a), F.R.Civ.P. ment plaintiffs to substan- failing in to move of introduce negligent part was gart negligence by of evidence that said de- paved portion tial completely from truck contributing was proxi- proximate a or fendants highway and that either collision of the death of David Morrison Tepper-Laughlin cause mately caused Tepper. cross-ap- Tepper and Max The Morrisons on in the deaths of or resulted which in error argue to Mrs. that the trial court was peal Morrison. As David negligent oper- sustaining defendant-appellants’ in motion she was in jury found that speed at a in as rate of a n. o. v. to the ating her automobile $25,000 was and to the of that which reasonable award of Morrisons for the excess circumstances, failing suffering in and of David pain under the Morrison. proper proper a and lookout for keep reasonable to vehicles, her failing in to have
other 49(a), Rule F.R.Civ.P. reasonable control. Her under automobile case was submitted jury This on proxi- negligence was also found to be a twenty-two interrogatories, pursu- written cause colli- mate of the 49(a), to Rule F.R.Civ.P.7 ant The answers sion. interrogatories to these created an made uncertainty hun- ambiguity returned a verdict of one or The ($125,- twenty-five Max thousand dollars whether dred resolution 000) against guilty any negligence for the of Max which Tepper Tepper Estate Frito-Lay, defendants and Bost- caused or contributed proximately twenty- ambiguity A three The arises out wick. verdict of hundred fatal following interrogatories answers: re- ($325,000) was thousand dollars five only may require Tepper Laughlin “The court a to return The 6. estates special Company special in the form of a verdict Modern American Life Insurance upon finding each of fact.” issue found not be liable. written special appears in II of the Vol. The pages Appeal at 377-386. 49(a) opening Record reads: sentence of Rule negligently question, drove his automobile over “INTERROGATORY NO. 9 the centerline of said and into the you preponderance “Do find from a opposite traffic lane where it collided with the Tepper evidence that automobile collided Tepper automobile? the Bostwick automobile? No_ “Answer: Yes_ “Answer: Enter ‘Yes’or ‘No’ ‘Yes’ ‘No’ Enter or ****** you preceding have answered the inter- “[If “INTERROGATORY NO. 17 affirmative, rogatory in the then answer Inter- 10; otherwise, rogatory No. do not do so.] you preponder- “Can determine from the ance of evidence in which lane of traffic “INTERROGATORY NO. 10 Laughlin collision of you preponderance “Do find from place? automobiles took the collision of the automobiles No_ “Answer: by: caused or contributed to ” Enter ‘Yes’or1‘No’ “a) Tepper’s keep failure to and maintain proper reasonable and lookout for vehicles 377-381.) II, (R. pp. Vol. near the in or front of him? No_ “Answer: of the ambiguity The basis lies in the Enter ‘Yes’ or ‘No’ jury’s response Interrogatory 10(c) when “b) operation by Tepper of his auto- conjunction read in with the other above- speed at a rate of mobile excess of that interrogatories quoted answers. The proper, taking which was reasonable and into consideration the circumstances then Interrogatories 10(a), 10(b), answers existing apparent and there him, which were and 14 indicate that the did not intend might apparent or which have been guilty negligence. to find In ordinary him the exercise of care? fact, response to Interrogatory 14 the No_ “Answer: guilty of no Enter ‘Yes’ or ‘No’ proximately contributed “c) Tepper’s keep failure to and maintain of the Tepper to the collision reasonable control of his automobile: in response automobiles. to In- Yes_ “Answer: Enter ‘Yes’ ‘No’ terrogatory 10(c) the jury found that “the *6 ****** of proxi- collision automobiles” was mately Tepper’s caused failure “keep to “INTERROGATORY NO. 12 maintain reasonable control of his auto- you preponderance “Do find from a of the Tepper, evidence that on the occasion in apparent inconsistency mobile.” negligently question, drove his automobile over was compounded by answers uncer- the centerline of and into the to which collision was tainty subject opposite traffic lane where it collided with Interrogatory 10. That interrogatory automobile? only if the to be answered found No_ “Answer: ‘No’ Enter ‘Yes’ or automobile collided with ****** likely the Bostwick automobile. It seems judge phrase intended the “the “INTERROGATORY NO. 14 of the automobiles” to refer to the collision you “If have found in Interrogato- answer to 10, 11, ries Nos. guilty 12 or 13 that However, Bostwick-Tepper is negligence, as such has been defined to entirely clear which collision the court, in the proxi- instructions of the referred, interrogatory particu- believed mately to the contributed collision of his of the larly light jury’s resolution of Laughlin automobile, automobile with the what percent of the whole proximately Interrogatory No. 14. If the jury believed causing you the collision do find from a Bostwick-Tepper collision was caused at preponderance of the evidence is attributable part by Tepper, least Tepper’s contributory negligence? to its answer to Interrogatory then 14 was 0%_ “Answer: clearly inconsistent with its answer to In- Enter here the Percent 10(c). If, however, terrogatory “INTERROGATORY NO. 15 the collision in to refer understood you preponderance “Do find from a of the collision, to the no incon- Laughlin, on the occasion in 160 urge that exist, it is reasona- because sistency would ordering a new trial in not court erred trial to assume
ble “inconsistency” basis on was unable to his own fault of through no interrogato- special to the response jury’s its collision his car after control of maintain jury an addi- submitting to the ries and automobile. interrogatory. tional ambiguity resolve this order In following addi- judge submitted trial jury: interrogatory
tional
Although
49(a), F.R.Civ.P.,
Rule
findings,
not refer to inconsistent
it is
does
INTERROGATORY
“SUPPLEMENTAL
in order for
verdict to stand the
clear that
10c,
you
Interrogatory
did
your answer
“In
keep
Tepper’s
failure
and,
must be consistent
if not con
find
answers
intend
his automobile
proper control of
maintain
sistent,
the case must
appeal
be remand
to the colli-
contributed
caused or
proximately
a new trial.8
before a
ed for
Tepper vehicles or
sion
appropriate
remand is
this Court is under a
keep
Tepper’s
failure
you
to find
intend
his automobile
proper control of
maintain
constitutional mandate
to “search for a
or contributed
[sic]
caused
case that
view of the
makes the
Tepper automobiles.
Laughlin and
Gonzales v. Missouri
answers consistent.”
here:
your answer
“Enter
629,
Co.,
(5
1975).9
R.
511 F.2d
633
R.
Cir.
hitting
“Tepper
the Bost-
lost control after
the instant case the trial court
In
chose to
auto._
wick
interrogatory
submit an additional
8,
“February
1974
Hodges
jury,
attempt
rather
than to
to harmonize
“William F.
“Foreman
jury’s responses.
It
propriety
is the
“2-8-74”
procedure which this
Court must dec
II,
p.
(R.
ide.10
Vol.
Co.,
Steamship
753,
Company,
(5th
Royal
ance
299
v.
Netherlands
F.2d
760
Miller
Cir.
8.
1103,
1975);
(5
1962).
v.
Cir.
Colvin
F.2d
1106
If on review of the district court’s
508
Dempsey-Tegeler
Co., Inc.,
(5
judgment
F.2d 1283
&
477
we find that there is no view of the
911,
Matherne,
1973);
471 F.2d
v.
Griffin
which makes
answers consist
Cir.
case
Company
1973);
(5
inconsistency
R. B.
v. Aetna
and that the
is
915
Cir.
ent
such that
753,
(5
1962);
Co.,
support
760 Cir.
special
F.2d
299
verdict will
Insurance
neither the
Miller,
Wright
Practice &
judgment
any
&
9 Federal
judg
also
see
entered below nor
other
(1971).
ment,
§
Procedure
then the
must be reversed
and the cause remanded for trial anew. Mis
found in
of this rule is
A clear statement
Salazar,
847,
Ry.
souri Pacific
Co. v.
254 F.2d
Matherne,
8,
supra
n.
wherein
v.
Griffin
(5th
1958); Wright Kroeger
Cir.
Cor
stated:
court
poration,
(5th
422 F.2d
178-179
Cir.
judgment upon
jury’s special
“Entry
1970).”
*7
findings of fact is sub-
verdict with written
911,
(emphasis added).
471 F.2d
915
See also
only
precedential guidelines
ject
to
not
Lines,
Stevedores v.
Atlantic & Gulf
Ellerman
The Sev-
restraint as well.
a constitutional
355, 364,
780,
82
369 U.S.
S.Ct.
161 present Such is the have cor case. A reasonable 49(a) pro no interrogatories supports makes view of the that Rule rectly stated in the 10(c) to be followed course that the meant for the conclusion indi- vision answers. lost control inconsistent of his car after cate event contention colliding with their disagree automobile. we It authority. overstepped its permissible court resolution was district This accom- that, while a to hold jury through be anomalous its answer to an plished would 49(a) search must interrogatory to Rule pursuant court additional demonstrated will make certainty apparent of the case which that the a view with reasonable for consistent, submit may not inconsistency in its verdict was no answers more jury to the interrogatory procedure This was not er- apparent. additional than an this case ambiguity. The facts of inquire an we no further. clarify ror and every decide whether require us to do in an inconsistencies THE of irreconcilable OF EVIDENCE
case SUFFICIENCY trial 49(a) interrogatories the to Rule swers concerning Questions sufficiency in additional permitted to submit is court be resolved reference must evidence declaring to avoid to the terrogatories standard set out in oft-quoted Boeing its clearly, in We think that trial. a new 365, 374, Shipman, (5 411 F.2d 375 v. Co. discretion, submit one or may the trial court 1969)(en banc), as Cir. follows: interrogatories more for directed verdict motions “On harmonizing apparent inconsist purpose notwithstanding the verdict harmoniza ambiguities when such encies all of Court should consider the evi- might ambiguities resolution of tion and just that evidence which sup- dence —not itself performed by the court be properly the non-mover’s case —but in the ports Matherne, 471 the test of Griffin under and with all reasonable light inferences 1973). (5 Cir. F.2d party opposed most favorable such case at bar the facts are In the motion. If the facts and inferences proper could have the trial court itself strongly overwhelmingly point so harmonizing the task of ly assumed party of one Court believes favor treat inconsistency apparent arrive reasonable men could not at a negli Tepper’s verdict, contrary granting ment of the motions mentioned, hand, As the over gence. previously if proper. On the other there is is interrogato tendency of the answers to opposed all to the mo- substantial one Tepper, is, and the tions, quality was to exonerate evidence of such ries negli impute may possibly reasonable and fair-minded weight answer am response to a somewhat impartial judg- was in gence in the exercise men conclusions, Miller v. This Court in biguous question. reach different might ment Co., denied, F.2d Steamship should be and the Royal Netherlands motions 1975), . (5 jury. said: . . 1108 Cir. submitted case conflict in substantial be a There must rationali- logical probable “Since [a] jury question. How- to create exists the of the jury’s zation answers ever, as the it is the function though accepted. must Even be *8 facts, finder of the and not would traditional that equally persuasive possibilities Court, weigh conflicting exist, the produce might reversal be shown to inferences, the and determine credi- inquiry here.” our own ends Co., also, Insurance 175 Truitt v. Travelers ted when the trial sent the back court 67, (S.D.Tex.1959), F.Supp. aff’d 72-73 280 consideration of an inconsistent further 784, 1960). (5 proce- Cir. In the instant case objection 790 F.2d made no counsel defendant-appellants Dial, it clear that made Safeway 311 F.2d the And in dure. Stores inconsistency they entitled them to a 1965), appel- felt the (5 that this held 595 Cir. Court trial, problem is no of failure to object so there precluded new a considera- failure to lants’ objection. timely 49(a). See make resubmission under Rule tion of 162 (Footnote highway, he was under a duty to do so.12 witnesses.”
bility Although Taggart pulled testified he the omitted.)11 as far as truck over he could without over- appeal, we must Thus, of this purposes it, turning convincing there was evidence to evi- was “substantial whether there decide contrary, principally photographs show- jury’s findings that support in dence” ing quite the shoulders of the to be Taggart, Frito-Lay, Further, wide. the evidence established negligence guilty that after the Bostwick automobile struck deaths of caused the which van, completely the van rolled off Tepper. and Max Morrison David and did not overturn. We are jury found that Specifically ample there is support satisfied pull opportunity had a reasonable finding that Bostwick was in negligent paved off the Frito-Lay completely van Frito-Lay with the colliding Espe- van.13 failure to do so was a and that his highway, cially damaging deposed is the testimony of Tepper-Laugh- of the fatal cause proximate Bostwick, herself, which reads Mrs. as fol- 6.)& (Interrogatory Nos. 5 lin collision. lows; Bostwick, found that she toAs us, “Q. thing you Tell what was first Frito-Lay colliding with the in negligent saw? directly negligence con- and that her van thing seeing “A. The first I recall was a (Interrogato- the fatal collision. tributed thought ahead I it reflector was mov- 8.) jury determined that Nos. 7 & ry forward, closer, got ing as I I realized but Tepper collided with moving at all not the time I negligence. (Interrogato- guilty not brakes, applied my it was too late. 9, In answer to the 11 & ry Nos. stat- Supplemental Interrogatory, of his automo- Tepper lost control ed “Q. why you go Mrs. colliding with Bostwick. bile around truck? Laugh- nor found that neither “A. I couldn’t. crossed the centerline of negligently lin “Q. any Were there other ve- oncoming aby was unable to decide highway but hicles? in of the evidence preponderance collision took
lane “A. I don’t know. 12, 15, 17.) (Interrogatory Nos. place. “Q. you Were so close the truck when you moving realized it was not you opinion This Court is of turn? couldn’t Tag evidence that was substantial Yes, 163, sir.” (App. pp. “A. Frito-Lay, was consequently gart, allowing approxi Appellants Taggart Frito-Lay guilty of mately protrude argue feet of the van to onto of Bostwick two is, highway; Taggart, independent, intervening if amounted to an paved care, consequently could have cause and that exercise of reasonable chain of completely paved linking off the causation them with the the truck fatal colli- parked Indus., Inc., Ply-Gem F.2d Bissett v. 533 prac- See business or district residence when it is Moser, 142, (5 1976); Chapman v. 146-47 Cir. stop, park, tical to or so leave such vehicle ” 1976); (5 Spurlin v. 429 Cir. F.2d part of said . off such . (5 Corp., F.2d 612 Cir. Motors General appellant position 13. The thrust of Bostwick’s 1976). regardless appeal negli- is that of her initial 63-3-903, 1972, pro- 12. Section Miss. Code gence, the collision vis-a-vis with the vides: van, proof connecting no there has been stop, park, person or leave stand- “No shall subsequent Tepper- with the initial collision vehicle, any ing tended, attended or unat- whether paved That issue will be ad- improved upon or main length opinion. later *9 dressed any highway part outside of traveled of impact ed that the “light” (App. 110, automo- was Laughlin and the sion of 612.) not, however, argument He could For their recall the was broken. biles negligence Opel facing of the was or if its posi- that the direction it is essential prevail, the was altered as a to be unforeseeable. tion on result be Bostwick Warren, Farms, 592, 594.) this collision.16 (App. Tag- Inc. v. of Broiler Canton is no (Miss. 1968).14 gart’s mysterious There account of a fifth vehicle 671, 677 So.2d reasonably striking Opel It was the Bostwick is bolstered in this contention. merit Prevost, of testimony the circumstances Officer who testi- under the foreseeable of portion an unidentified collide with man told him that would fied someone the Opel. (App. onto the protruding 429.) van left had run into Pre- he the was the basis fact, rationale this also testified that Mrs. vost while In negligence. characterizing the act as hospital, told him that her in the car was Tepper- on the left rear after the struck there has held far this Court Thus 447.)17 (App. collision. that the combined substantial was of the plaintiff-appellees The contend that there Bostwick-Taggart caused ample was circumstantial evidence to rebut Next, we must determine whether preceding testimony Taggart support substantial was Prevost, and to warrant submission of the oc- collision finding Tepper-Bostwick that a jury. They argue that the by the caused and was curred of Air testimony Safety Force Technician Bostwick-Frito-Lay collision. Hawkins leads to the reasonable inference that a collision between the Tepper and dispute fact parties None Bostwick (App. automobiles occurred. 190- in at least Opel was involved the crux argument of their concede that the first and all two accidents testimony in the Hodgins lies of W.E. van.15 Frito-Lay was with collision Bailey, E. Ernest chemists from the Missis- controversy surrounds However, substantial sippi Laboratory, Chemical State concern- defendant-appel- The accident. the second ing paint samples taken from the Bostwick fifth vehi- that an unidentified argue lants Opel Tepper’s (App. 315-359.) Pontiac. Opel shortly collided with cle Hodgins he paint testified that removed accident. Tepper-Laughlin, the fatal scrapings from the two automobiles. In that, got he out just after Taggart testified particular samples he stated he removed following van “foreign paint” impact from the collision, northbound area of the light-colored saw a he Opel. rear fender of the rear of the left automobile. skid into left Opel ear 108-11, 137, 569, 610.) 317-18.) stat- (App. Bailey testified that he con- (App. requested squarely alleged collision, not to ad- was at 14. the time of this it would foreseeability, a construc- issue of dress the have been most difficult northbound negligence of Bostwick was Mrs. tion mystery damaged car to have the left rear of implicit in the foreseeable seems course, Opel. possible Opel Of it is that the Tag- both Bostwick and sitting angle an Tepper- proximate gart cause of the awas would have facilitated such a collision. Laughlin collision. testimony by deposi- 17. Mrs. Bostwick Opel had testified that 15. Officer Prevost support point: Prevost on tion does collisions, damaged by one on each two been (R. Photographic evi- your memory you of the car. side When return to “Q. testimony supported and tended to dence [following the collision damaged right one collision establish that van]? Opel collision dam- and the other front Everything very very “A. confused and aged the left rear. being hospital foggy. I remember emergency room. that, when he arrived Prevost testified your memory That is when came back? “Q. accident, Bostwick auto- scene of things.” is when I recall “A. That high- in the center was located mobile 172-73.) facing way so situated If the south. *10 there seeking identify was no various tests evidence of negligence ducted samples question. part As a result of of Tepper, we paint find that substantial tests, Bailey points concluded that sam- evidence initial paint Taggart taken from the left rear Bostwick and foreign as a cause ple of the Bostwick-Tepper Opel was “identical” with that taken 347.) (App. the Pontiac. As to the from Lastly, inquire we as to whether Pontiac, Bai- foreign paint taken from is substantial evidence of a causal paint that it was “similar” to the ley stated connection between the Bostwick-Taggart Opel taken from the but he could sample (Frito-Lay) collision and the tragic Tepper- it say (App. not was identical. Laughlin collision. The fact that the two collisions occurred within proximity close Boeing Shipman, supra, Co. v. advis one another both in time21 and space es us to is light review the evidence relevant causal connection. If verdict. most favorable something more is needed to satisfy testimony Bailey chemist furnished substantial evidence criteria of Boeing, that Opel substantial evidence that Bostwick’s something may extra be supplied by the Tepper’s collide, Pontiac did and to so substantial evidence of a Bostwick-Tepper province was within the jury. find of the collision, by evidence indicating that Having found that substantial evi Tepper lost control of his automobile fol supports determination lowing dence the Bostwick collision and that he the Bostwick and automobiles was never able regain control. Patrol collided, inquire we whether there was sub Prevost man testified that skid marks com collision was stantial menced at the extreme righthand side of by the caused concurrent of the the north lane at the rear of the Opel and defendant-appellants. The evidence of the continued “twenty-five steps” or seventy- marks tends to establish that skid if the five feet down the same lane of traffic Tepper automobile struck the Bostwick ve gradually heading to the left and terminat hicle, when the latter it did so had intruded ing, gouge in a mark in the north lane. the northbound into lane.18 This view of While Air Safety Force Technician Haw supported by is the evidence the final loca gave kins a substantially different account facts, tion of Bostwick automobile in the cen he too indicated that the evi by ter of the fact that suggested dence that Tepper lost control of damaged in the left rear. Since the his car as a result of the Bostwick automo dispute do not parties being bile in the northbound lane of traffic. 373,19 north traveling Highway the jury Hawkins testified that the northbound car reasonably have could concluded that the which made the skid marks went off the by presence was caused accident right, road to the swerved back onto the Tepper’s Bostwick vehicle in proper road, lane. eventually involved in a colli A reasonable inference from the evidence is which left sion marks in the southbound Opel was in the wrong lane be lane of the Thus in conclusion we it was carried there cause force of its find that there was substantial evidence: collision with the van.20 Tepper-Bostwick Since that a collision occurred as 204, 410, App. See, e.g., App. 18. 794. The p. skid marks were 19. 292. positively belonging never identified as strong Pontiac. inference explanation 20. Another under the circumstanc- they is that must have been made the Ponti- es would be a volitional act of only traveling ac since it was the car north- she stated that she was rendered unconscious pass Opel. ward The unidenti- (App. 172-73.) the first collision. proceed fied fifth vehicle northward prior beyond to officer in- Prevost’s testified he heard a second collision 90, vestigation. rolling. (App. 613.) while the truck was still *11 of AFFIRMED IN PART AND concurrent RE- of the a result collision VERSED IN PART. that Taggart; and Bostwick his automo- control of to lose Tepper caused control caused
bile; loss of and that this GEE, Judge, concurring Circuit in part collision.22 tragic Tepper-Laughlin dissenting part: and in Judge I concur Rives’ lucid and schol- n.o.v. dis judgment Regarding the arly opinion in this troubling close and $25,000 for award of allowing cause, except for its reversal of the trial Morrison, this suffering of David pain judgment modest court’s non obstante. It court the district opinion of the is Court .say many that is fair find- shows Morrison evidence The erred. ings rest on evidence which is thin and that receiving his three hours after at least live some of the inferences drawn by ap- Prevost tes Highway Patrolman injuries. conjecture and proach speculation. Not- Morri attempted to talk with he tified withstanding, I conclude majority with the shortly after acci hospital son respects in all but this the line is not dent; ap conscious and that Morrison was crossed. With the award for Mr. Morrison’s 424, 426). The suffering to be peared suffering, however, pain and the evidence Prevost was of Patrolman testimony scintilla; seems to me to dwindle to a and I pain as to the only evidence introduced judgment would defer to the of the trial This evi suffering Morrison. of David court, which officer heard Prevost’s testi- alone, requisite dence, standing is of mony. Boeing, weight” envisioned “quality The n.o.v. F.2d at 374. supra, 411 $25,000 pain
disallowing the award is set aside. suffering of Morrison con- careful examination Court after
This evidence was substantial
cludes that We further verdict. support in its court did not err the district
hold Judg- 49(a) questions.
handling of the Rule in accordance be rendered
ment should appeals are taxed Costs jury verdict. defendants-appellants Frito-
against and Bostwick. Taggart
Lay, Further, finding col- that the bound lane. the acci- negli- caused particular lision dent occurred in a lane would not and that gence of both Tepper Laughlin. impute to either culpable. Laughlin Tepper nor neither ample There was lost neither driver Specifically, found that colliding of his car with Bostwick control over the cen- “negligently his automobile drove regain that he was unable to control in appel- highway . . . of the terline 75 to 130 feet between the two accidents. significance particular to the fact lants attach Thus, Tepper crossing not be would liable prepon- to decide was unable Laughlin of the As to the centerline the lane in which of the evidence derance apparent that he was confronted it is with an place, Tepper-Laughlin collision took but we emergency situation —the Pontiac head- ques- opinion of this that a decision of the are direction, van off to the ed in dispositive the case. is not tion right highway and the ahead only direct evidence conflict in the There was ahead. Un- in the middle collision occurred. which the to the lane in circumstances, there was substantial der Highway testified that there Prevost Patrolman neither nor gouge northbound lane mark awas regardless culpable, who the center- crossed Safety Technician Air Force line. gouge in the south- mark located Hawkins