*1 MAJOR, Judge, Chief Before SCHNACKENBERG, LINDLEY and Judges. Circuit Judge. LINDLEY, Circuit judgment appeals from a against plaintiff’s init suit for rendered damages injuries. urges personal It judg- which the the verdict supported was based ment evidence”; “substantial evi- negated entirely dence conclusively re- arising any presumption butted from proved, circumstances and that refusing court erred trial tendered instruction. facts, viewed, be, must light plaintiff, most favorable to

(cid:127)584 22, Iowa, applicable, proof which is of own- are in follows. On brief as driving ership 1952, proprietorship justifies, plaintiff, a west or in the .while 30, contrary, Greyhound U. Route absence of finding to a on S. evidence the bound bus responsibility Wheatland, shortly operation Iowa, 8 of before of near p. Curry Bickley, approached an left. automobile. 196 m. v. a curve on-coming Seeing 827, 617; lights Iowa vehicle 195 Heavilin v. N.W. of an the Wendell, 844, 654, thinking 214 partially his side 241 N.W. 83 on Iowa and it was 872; Wisner, road, to the A.L.R. Seleine v. 200 Iowa of the he' turned the bus doing so, right, off the 206 N.W. 130. That the evidence in drove justify pavement avoid was sufficient of the to to an inference onto shoulder Thus, get ownership operation on the is clear. collision. As he tried to highway, back Brewing steering- Thompson, Corp. in of the Falstaff v. lost control 304-305, Cir., wheel, pages 8 101 at seat was F.2d fell off driver’s injured. an where a collision occurred between de- automobile and a motor truck and question the lia- is as to No raised operating fendant denied that it was vehicle, bility other of the driver of the place vehicle at the time and of the colli- gas trailer, transport for the truck and sion, was, here, the identification as injuries by plaintiff. But de- suffered truck, name on court said: the the the sub- fendant the evidence contends that sure, “To drivers be each of defendant’s wholly insuffi- mitted driving truck, denied that he was the finding support a that the of- cient to fending de- there was that none of belonged to it or was be- truck part in the fendant’s trucks were city this of ing used with consent. the at the time of the accident. But passengers bus, Mr. and Two on the jury required not to this tes- believe plain- Castle, in Mrs. William testified timony, especially in of view that the definitely identifying tiff’s Mr. said behalf. Castle the accused truck painted bearing bore in identifying trailer white and as that the names * * name “Ruan.” black letters on its side the as *. It is when defendant’s the same clearly wife that she saw proof His testified and distinct- uncontradicted trailer; that she ly of the name the side a fact so that reasonable establishes passing inference, her had seen trucks of defendant that minds can draw but one disappears familiar presumption and was home on the or de- is the ** * operated type stroyed. of vehicle de- with In of the view verdict the truck jury, testified that fendant. Plaintiff we not that the tes- can painted trailer white. timony red and the who said of witnesses that, signs defendant Baker testified for on the One could on the truck read night question, day he drove such a incredible or un- on the of accident was bearing worthy truck and white trailer To same effect red of belief.” Indemnity over Route of “Ruan” N. A. v. black the word are Insurance Co. place 120; passed Kellas, Au- that he F.2d Silent but insisted 1 173 thirty Stayton, Cir., Corp. minutes or more 8 45 some v. the accident tomatic Sales Gleason, Cir., occurred; 471; that he checked at before F.2d Lukehart thirty-five terminal, miles is last decision some 529. The cited m.; p. away, that he 9:05 but at more stopped an Iowa case. way. to eat hold to that insists go jury is to to sufficient evidence Upon the direct do upon inference. We pile inference was to trailer agree interpret We situation. white, red, so and that the word not the truck cited trailer, per authorities with the court was on “Ruan” prima presented makes here go jury. is That such the cause to mitted operation. ownership and defendant, case facie sufficient bind it was spring from the fact think, Both conclusions Under the law obvious. we Only complete circumstances, presence and where there is a absence same —the bearing conclu- operation defendant’s facts to of a appear. piling sion inference reached does reversible error name. This is *3 645, Supreme Kurn, of Lavender 66 S.Ct. Court v. 327 U.S. As the inference. Wisner, 740, said, 200 Iowa 90 L.Ed. lie within v. 916. It does not in Seleine Iowa law, power say, 130, 1389, have also our to as of that 131: “We a matter 206 N.W. allegation ownership testimony substantial, car- the wit, was not credi- of that an held law, to ble or believable. function of of That is the with it an inference ries by Grip operated v. the owner the trier of the facts. Nut Co. that the car Sharp, Cir., 192, by else, 150 de- or, it was with 7 F.2d certiorari if some one that permis- nied L.Ed. And is 326 U.S. 66 S.Ct. 90 consent.” it the owner’s pre- 443. conclusions or draw several sible to sumptions of the same set of fact from complains re Brew- Falstaff facts or circumstances. fusal to instruction tendered Cir., ing Corp. Thompson, 101 F.2d v. 8 charge to the which defendant asked 301. jury is that “when credible evidence showing by Obviously prima facie case it did introduced defendant such a law, vehicle, presumption operate said, to a matter of not the such as can be as this by defendant) by (of operation only en uncontra vanishes when rebutted vanish * * tirely Obviously proofs. Silent *.” the state- invulnerable dicted or Cir., pre- Stayton, quoted Corp. 8 ment is not sound law. The Sales Automatic necessarily wiped operation sumption ownership 471; of is not necessarily upon evidence, pro- contradictory by for the does not vanish the out jury opposing “any accept the the duction of contrary.” credible evidence to to is not bound testimony Indem It when the defendant. vanishes offered Kellas, contrary jury nity 1 finds the evidence to be of of N. A. v. Insurance Co. outweigh Consequently, when such character as to or counter- F.2d 120. contradiction, prima the balance the facie case made offered defendant plaintiff. jury Baker, former truck To have instructed the of admission, requested, driver, who, was defendant would have consti- on his own charge driving company’s trucks and tuted error. Furthermore the one of jury fully amply place as a whole of the accident cov- near the trailers though correctly governing occurred, principles shortly ered before jury credibility, impeachment, plaintiff’s accident, no said he saw obligation prove charged burden to to determine the averments of his with complaint. lay. func the truth Such was its where ; say is not for us to that it made tion it judgment The wrong determination. Affirmed. insists that the defendant But plaintiff’s was so of Judge MAJOR, (dissenting). Chief preposterous that it and so incredible justify court’s submission trial ground I would reverse points support jury. of this it In was no substantial there witnesses, statements to earlier finding jury defendant’s truck Greyhound, claim taken conflicting responsible for the accident which testimony at with their damages. caused Whether proof depends Whether these witnesses were entirely trial. such there credible; plaintiff whether were to be be two lieved, circumstances, passengers, in view of all the William F. his Castle and including impeaching, otherwise, Castle, wife, their both of Marie whom right explanations, question was a own were seated at the time of the accident at bus,

fully plaintiff. to the triers of submitted the facts. front end near p. . m. on accident occurred about 8 Did letters see black driving Plaintiff, [referring 1952. there ? trailer] two-lane, per Well, you mean, bus 25 or 30 miles hour on a know what I left, which curved to the dis- black streak. I couldn’t that I approaching covered the read it. highway. on his side of For this you actually But all saw was right reason to his turned right. the^black streak? A. That’s highway. on to the In shoulder of the “Q. Well, then, you actually all bringing his bus to a he was thrown saw was the black streak as this injuries. from the seat and sustained *4 right? by you, truck went isn’t that offending Both the bus and the truck had A. Yes. headlights proof, their on. There was no offending speed truck, as to the of the al- “Q. any didn’t, letters, You read though alleged complaint was that it you? IA. said I visualized traveling, dangerous a “fast and rate $t by my eyes.” them speed,” and the shows that plaintiff At the trial testified that the it did not a but went like flash. offending defendant, truck was that of One witness stated was that there that it was reda tractor and white trail- length an arm’s between and it the bus. er, with the word in “Ruan” lettered night snowing dark, The was been had. black on the side of the trailer. On cross- highway and the was described shoulder examination, following appears: muddy. as soft and “Q. any You didn’t read letters you Shortly accident, after the a Mr. Har- coming on the vehicle toward or mon, agent claim for the Interstate Tran- any words on I it? A. visualized. Lines, Inc., company by, sit the same “Q. you imagined You mean it? plaintiff employed which as a bus No, I visualized it. driver, investigation an commenced “Q.. actually You didn't read ascertaining purpose identity lettering any wording on the ve- .offending March of the truck. On he coming you Well, hicle toward ? A. procured from Mr. and Mrs. Castle de- visualizing, yes. as to the circumstances statements tailed testifying You are not as to surrounding and, on accident June you actually what saw? You are obtained similar statement he testifying you visualized, to what plaintiff. All of these state- from Well, that true?' A: to a certain ex- signatures respec- of the bore the ments tent. parties own handwrit- and in their tive you And when testified on ing statement, “I read the have above you any- March 13 that couldn’t read and it is true.” thing you telling on the truck were truth, weren’t ? A. Yes.” in his statement óf June Plaintiff company stated, “I cannot state what was cross-examined concern- ..Plaintiff belonged may ing I to' as did not truck havé his' statement to the claim trailer,” 3, 1952, name of the and make out the in made June he had which positively cause of the accident the. “The sole that he “did not make stated in truck was the cen- fact this unknown out name of the trailer.” At no time highway testify and forced me off the ter of the did he that he did not make that 13, 1953, plaintiff highway.” March On statement or that it was other than a Peoria, Illinois, proceed- voluntary in in testified statement. That statement record, ing of which nature in type- the exact when evidence was in .introduced During form, disclose. that examina- and does not written testified in an by reporter, tion, longhand which was taken fashion uncertain that it was , signed following propounded questions explanation were when it. No signature n given: offered to how his answers and the as; halting handwriting, my mind, evasive “I To own statement true,” could criti- it is on the have read the above of these witnesses form thoroughly from one been transformed identity have cal issue of is so statement to another. impeached their contradicted and wife of Castle previous by their cross-examination and plain- pattern as that same follows the contrary no' it carries statements that in his statement The former tiff. Furthermore, value. stated, 23, 1952, “I agent, claim controlling importance, circum- of the the color was unable determine that, my opinion, stances were such Mrs. side.” truck or the name physically impossible wit- for these stated, “The truck time at that Castle recognized nesses to have a name or let- Transport I could but was a Gasoline ters on the side of the truck.” Castle name on the as to the or trailer. Plaintiff and his word he saw the at trial testified suddenly The were truck. confronted with an emer- “Ruan” on the side sig- following questions gency are and answers and crowded off the nificant : *5 offending truck. The two vehicles “Q. entire passed from the range, traveling Is it oppo- true at close pavement you until went off the time directions, preposterous site and it is your you had bus came to suggest person that a on the bus could or right eyes side of the fixed on the recognize a word or letters on the Yes, highway? sir. A. offending side truck or trailer. stop, you came to When clearly The record reveals that this tes- going opposite di- in the this vehicle timony identity on the issue of was an you passed A. Yes.” had ? rection afterthought, concocted to meet the exi- making to gencies statement He admitted of a law suit. This effort should day the acci- after the claim not be crowned with success. why explanation as to no dent and offered Reviewing courts are not bound to ac- changed testimony on the es- he had his identity cept inherently evidence that is incredi- point other than that sential plainly opposed ble or is to common sense made the oath when he he was not under practical experience light in the day accident. after statement physical facts involved. Fore v. at the trial that she Castle testified Mrs. Ry. Co., Southern 178 F.2d “Ruan” on the side saw the name 351. physical Evidence contradicted following offending questions truck. facts is not substantial because it is with- shown with reference to and answers are out value. Lovas v. General given previously the claim the statement agent: Corp., Cir., Motors principles These and similar announced compulsion or threats And no many applicable cases are in the in- sign over it? were exercised jury might stant situation. The have be- very No, would he told me it be A. lieved, might believe, this court that the confidential. offending truck was defendant,, that of nevertheless, “Q. But, it was point but the is that there was no sub- your and contained the statement stantial thereof. To not, truth, whether it was con- did it hold that sustained the burden A. Yes. or not ? fidential proof upon identity the issue of the statement, “Q. It was a truthful truck is to credence to Yes, as near as I that which wasn’t is incredible it? and I think im- possible. could.”