Properly invoking the diversity jurisdiction conferred in Title 28 U.S.C. § 1332(a)(1), the plaintiff-appellee brought an action in the court below under the Rhode Island wrongful death act to recover damages for the death of her husband, which occurred when аn automobile owned and operated by him and a tractor-trailer unit owned by the defendant-appellant, Russell, and operated by his employee, the defendant-appellant, Reynolds, collided at an intersection of public highways in Rhode Island. The court below after trial without a jury found on its analysis of the evidence that the decedent had not been guilty of any negligence that contributed to the сollision and his death, and that the “sole and proximate cause of the accident and death of the decedent was the negligence of the defendant Reynolds in failing tо
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operate and control the tractor and trailer in a reasonably careful manner” [
With a quite inconsequential exception, the appellants’ entire argument in this court consists of an attack on the District Court’s findings of fact. In principal part their contеntion is that that court erred in giving credence to the testimony of an impartial witness to the collision for the reasоn that the testimony of that witness conflicts and is inconsistent with physiсal facts as established by certain photographs аnd measurements showing the damage to the vehicles, their position after the accident and the location of tire marks and such matters on the highway. That is to say, their argument is that the testimony of the witness should have been altogether disrеgarded as a matter of law for the reason that his estimates of time, speed and distance cannot be madе to fit the physical facts established by objective evidence. The argument is as insubstantial as a house built upon the sаnd. It is well known that a lay witness’ estimates of time, speed and distance, particularly those made in a flash at the momеnt of occurrence of a dramatic event, are almost certain to be inaccurate and for that reason are not to be relied upon implicitly. With this in mind the cоurt was entitled to accept the testimony of the witness as painting a general picture of the event, even thоugh his testimony could not be made to coincide in every dеtail with established physical facts.
It will suffice for us to say that examining the record, and according due regard “ * * * to the opportunity of the trial court to judge of the credibility of the witnesses,” we are convinced that the findings of fact made in this case are not “clearly erroneous.” Rule 52(a) F.R.Civ.P., 28 U.S.C.
A judgment will be entered affirming the judgment of the District Court.