Opinion
No. 230, Docket No. 20941.
June 28, 1948.
Appeal from the District Court of the United States for the Eastern District of New York.
Action under the Federal Tort Claims Act, 28 U.S.C.A. § 931, by Alice Johnson, as administratrix of the goods, chattels and credits which were of Carl Johnson, deceased, against the United States to recover for decedent's wrongful death. From a judgment, 75 F. Supp. 134, dismissing the complaint, plaintiff appeals.
Affirmed.
The appellant is the administratrix of her deceased husband, Carl Johnson, who was accidentally killed on January 26, 1945, when struck by a truck of the United States Navy driven by Clifford F. Stein, an enlisted man in the Navy. Johnson was a deck-hand on a ferry-boat of the City of New York which plied between Manhattan and Staten Island. The accident occurred while the Navy truck was being driven onto the ferry-boat at its Manhattan slip. The plaintiff's action was brought under the Federal Tort Claims Act, 28 U.S.C.A. § 931, the claim being that Johnson's death was caused by Stein's negligent operation of the truck. It was tried to the court without a jury, and the complaint was dismissed for lack of proof of negligence.
The evidence adduced at the trial showed the following facts: As the 5 ton G.M.C. cab-over-engine truck was driven onto the ferry-boat, Donegan, an employee of the ferry, directed Stein to take the left runway. This was ten feet seven inches wide, with a coaming on each side 12 inches in width, five inches in height, having a rounded edge, and slanting slightly toward the driveway. The driveway between coamings was, therefore, eight feet and seven inches wide. The body of the truck was eight feet wide. So the clearance between the truck body and the bulkhead wall of the center house on its right would be one foot 3½ inches, if the truck were driven exactly in the center of the driveway. The truck body overhung the wheels by about 2½ inches. Consequently, if the truck were driven so that its left wheels were flush with the left side coaming the maximum clearance between the right side of the truck body and the center house wall of the ferry boat would be one foot and 9½ inches. As the truck proceeded in lowest gear along the driveway, Johnson was seen walking toward it, and Stein brought the truck to a stop. Johnson walked forward a short distance, stepped up on the right hand coaming and stood with his back against the wall of the center house. Stein then started the truck and proceeded at slow speed to pass the point where Johnson stood. The cab of the truck went safely by Johnson. Stein hugged the left side of the ferry as well as he could, and after the cab had passed Johnson, Stein could no longer see Johnson, and headed straight for the front of the boat. When about two-thirds of the length of the truck had passed the point where Johnson stood, Stein felt a slight thud and stopped the truck as quickly as possible. Riding in the cab with Stein was a Navy man named Dupuis. When the truck stopped Dupuis got out, walked along the coaming and found Johnson lying in the driveway about five feet to the rear of the truck, with his head near the right wheels and his feet near the left wheels. Ten ribs and his pelvis were fractured and both sides of his face bore abrasions. Donegan, the mate, said that the space between the truck and the bulkhead on the right hand side was such that he could not walk straight through but had to hold in his stomach to get by sideways. He thought Johnson a little thinner than he was.
The district court's opinion, 75 F. Supp. 134, 135, states that it is impossible "to determine exactly what caused the accident. * * * It is entirely possible that Johnson slipped off the rounded edge of the coaming and in so doing came in contact with the body of the passing truck." It also states: "There is no evidence of negligent driving, either as to failing to stop the truck to give Johnson an opportunity to get out of its path, or by driving the truck too fast, or by changing the direction in which the truck was moving."
Theodore J. Drach and Irving Ginsberg, both of Staten Island, New York, for appellant.
J. Vincent Keogh, U.S. Atty., of Brooklyn, N.Y. (Frank J. Parker, of Brooklyn, N.Y., of counsel), for appellee.
Before SWAN, CLARK and FRANK, Circuit Judges.
Were this an appeal from a jury verdict, we should have to sustain the conclusion of lack of negligence on the part of the truck's driver. As the case was tried to a judge, on this appeal we must accept the trial court's findings of fact unless "clearly erroneous," and there is no contention that they are not supported by the evidence. Whether the facts as found show negligence presents a question of "law" in respect to which we are not bound by the district court's conclusions, but those conclusions are entitled to weight even though their bases are not fully articulated in the findings of fact and opinion.
Kreste v. United States, 2 Cir., 158 F.2d 575, 577; Great Atlantic Pacific Tea Co. v. Brasileiro, 2 Cir., 159 F.2d 661, 665.
We think the decision of the court below that Stein was not negligent is sustained by the findings of fact and the evidence. The court found that Stein hugged the left side of the gangway. Stein himself testified without contradiction that there was "maybe about six inches at the least" between the wheels and the coaming on the right after the truck stopped, and that there was still a little space between the left wheels and the coaming, but not as much as on the right. If we assume that there was a space of seven inches between the wheels and the coaming on the right, that would have left a space of five inches on the left, and would accord with the Judge's finding that Stein hugged the left. In that event, there would have been 16½ inches between the truck body and the bulk-head on the side where Johnson was standing.
Johnson's death certificate indicates that he was 5 feet 4½ inches high and weighed 140 pounds. Allowing him the generous girth of 40 inches and assuming his body to have been cylindrical, his diameter would have been only about 12¾ inches, giving him a clearance of about 3¾ inches as long as he kept his back to the bulkhead. This clearance should have been adequate. Thus it clearly appears that Stein did not drive negligently close to the right bulwark. It is also undisputed that he drove at a slow and careful rate of speed.
It is suggested, nevertheless, that Stein may have been negligent in failing to stop the truck until Johnson had gone past. In view of the fact that Johnson, a regular employee of the ferry-boat, had in effect invited Stein's course of action by stepping on the coaming and waiting for the truck to pass, we do not think Stein acted unreasonably in proceeding at a slow rate of speed. For the same reason we do not think it was unreasonable for him not to stop every two or three feet as he passed Johnson.
It is also suggested that Stein might have had Dupuis, the man riding with him, watch Johnson from the truck cab, or alight and take a position ahead of the truck from which he could watch Johnson and signal Stein. There is no evidence, however, from which we can conclude that either of these measures could have saved the life of Johnson. It is to be noted that, although Stein, after feeling a thud, stopped the truck as quickly as possible, Johnson's body was found five feet behind the truck. Appellant suggests that this fact is not consistent with a slow speed on the part of the truck. Since it is undisputed, however, that the truck was moving slowly, we think the position of the body is simply evidence of a fact of which we might have taken judicial notice, i.e., that the quickest reflexes and the best brakes cannot stop a five ton truck on a dime.
Affirmed.