I.
This аction is brought by plaintiff, Harry D. Duncan, to recover for damages which resulted from an automobile аccident involving the plaintiff’s car and a government vehicle.
Plaintiff is a resident of Oklahoma. The amount in controversy is in excess of $1,000 and no claim has been filed before any government agenсy.
III.
On January 11, 1950, plaintiff was driving south on U. S. Highway 81 about four miles north of Marlow, Oklahoma, when the second vehicle in a convoy of government vehicles traveling north, swerved or skidded across the highway in front of plаintiff’s car and a collision resulted.
IV.
The government vehicle involved in the accident was driven by Sergеant George O. Mintz and the Government admits he was in line of duty at the time of the accident.
V.
The court finds the evidence discloses the following material facts incident to the accident :
(a) It occurred about 4:30 in the afternoon.
(b) For some timе prior and at the time of the accident, it was raining or misting.
(c) The roadbed of the highway was of an armour coat of asphaltic mixture into which rock chips were rolled. This as-phaltic mixture had blеd through to the top of the roadbed creating a slippery surface, particularly during wet weаther.
Testimony of a highway patrolman, stationed in that area, was introduced at the trial and not objected to by defendant’s counsel. This testimony disclosed that in the three months prior to January, 1950, a number of accidents had occurred on the highway in the proximity of the place where the aсcident occurred and a considerable portion of these accidents was attributable to the slick surface condition of the highway.
(d) Both vehicles were traveling at a reasonablе rate of speed.
(e) At the time the government vehicle skidded or swerved in front of plaintiff’s car, thе driver was applying his brakes for the purpose of slowing down the vehicle.
(f) Sergeant Mintz had not traveled on this particular stretch of the highway before the day of the accident.
VI.
The evidence does not warrant a finding that Sergeant Mintz was negligent in applying his brakes immediately prior to the aсcident or that the brakes were not in good working order.
VII.
The evidence does not disclose thаt Sergeant Mintz or the plaintiff was driving in other than a reasonable prudent manner at the time of the аccident.
VIII.
From a preponderance of the evidence the court concludes thаt the cause of the accident was the slippery condition of the highway and insofar as the parties to this action are concerned, the accident was unavoidable.
Conclusions of Law.
I.
By authority of thе Federal Tort Claims Act, the court has jurisdiction over the parties and subject matter of this action. 28 U.S.C.A. § 1346(b).
II.
Plaintiff had the burden of proving by a preponderance of the evidence, the defendant’s negligence.
III.
The fact that an accident happened and an injury resulted therefrom, does not raise a presumption or is evidence of negligence, except under the doctrine оf res ipsa loquitur which is not applicable under the circumstances in the instant case.
IV.
The doctrine of res ipsa loquitur is a rule of evidence and if applicable, creates a rebuttable presumption of negligence. In order for the doctrine to operate, the thing causing the injury must have
To invoke the doctrine in this action, the skidding or swerving of the governmеnt vehicle must be considered as negligence in and of itself. The court is of the opinion that such а conclusion is not well founded.
Skidding or swerving may occur without fault. It is a matter of common knowledge that drivers can lose control of their cars on slippery roads without being negligent ' in the handling of the vehicle.
V.
The use of the highway under the circumstances in the instant case is not negligence as a mаtter of law;, but if it would be so held, each of the parties to this action stand in the same shoes and сontributory negligence would preclude either from recovery against the other.
VI.
The plaintiff сontends that Sergeant Mintz was negligent as a matter of law because his vehicle was traveling on the wrong side of the highway at the time of the accident. It is true that Mintz’ jeep was to the left of the cеnter line of the highway at the time of the collision which is a violation of the Oklahoma Statutes governing the rules of the road. Title 47 O.S.A. § 121.4. However, to be at fault by virtue of the statutory prohibition the conduct оf the defendant must be either intentional or negligent; therefore, since .the government vehicle was on the wrong side of the highway as a direct and proximate result of a non-human agency, i. e., the sliрpery condition of the highway, no liability attaches.
VH.
Counsel are directed to prepare a judgment in conformity with the above findings of fact and conclusions of law, and to present it to the court for signature within ten days from this date.