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BUSEY v. WASHINGTON

January 15, 1964

Emil BUSEY, et ux., Bernice Busey, Plaintiffs,
v.
William WASHINGTON, Standard Salvage Co., Inc., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, and Walter J. Brown, Third-Party Defendants



The opinion of the court was delivered by: PINE

This action is before me for decision on a third-party claim against the United States for contribution and on motion by defendants for judgment n.o.v. or for a new trial. The pertinent facts are set forth below.

Emil Busey and his wife, Bernice Busey, plaintiffs, instituted an action for damages growing out of injuries sustained by Mr. Busey. His claim is for damages on account of personal injuries, and her claim is for damages on account of loss of her husband's services and consortium.

 Busey, a mail carrier, was a passenger with other carriers in a United States mail truck. They were being transported to the locations where they were to commence the delivery of their mail. Their mail bags were in the truck with them. Busey intended to leave the truck at its next stop. Before reaching the location the occurrence giving rise to this litigation took place.

 In front of the postal truck, just prior to the occurrence, was a loaded salvage truck. It was being driven by an employee of the owner of the salvage truck, acting in the scope of his employment.

 The driver of the postal truck attempted to pass the salvage truck on its left hand side, both proceeding in the same direction, and in so doing the accident occurred. Plaintiffs sued the driver of the salvage truck, defendant Washington, and the owner of the salvage truck, defendant Salvage Co., and did not sue the driver of the postal truck. But defendants have made the driver of the postal truck, Walter J. Brown, and the United States third-party defendants seeking contribution if the verdict and judgment should be in favor of plaintiffs.

 The jury found in favor of plaintiffs against defendants, and in favor of Brown, the driver of the postal truck, on the third-party complaint against him. Generally stated, the legal effect of the verdict is that the jury found that the driver of the salvage truck was negligent, that the plaintiff was not contributorily negligent, and that the driver of the postal truck was not concurrently negligent.

 The third-party complaint against the United States is brought under the Federal Tort Claims Act *fn1" and decision on the third-party complaint against the United States is one for the court and not the jury. *fn2"

 Defendants made timely motions for a directed verdict against plaintiffs on the principal ground that the male plaintiff was guilty of contributory negligence as a matter of law in that he allegedly violated Sec. 111 of the Traffic and Motor Vehicle Regulations of the District of Columbia, reading, so far as material, as follows:

 'No person shall ride on any vehicle upon any portion thereof not designed or intended for the use of passengers, and no driver of a vehicle shall permit the same. This provision shall not apply to * * * persons riding within truck bodies in space intended for materials.'

 It is undisputed that plaintiff Emil Busey was riding in a part of the truck not designed for the use of passengers. Instead, he was sitting on the floor of the front portion of the body of the truck with his legs and feet extending into the well of the cab of the truck opposite the driver, waiting to alight at the next stop. There were benches in the body of the truck running lengthwise with the truck and affixed on hinges so they could be lifted to the sides of the truck when not is use, and these were the places designed for passengers. The mail carriers' mail bags were in the truck with them. At the time of the accident, the driver of the truck, third-party defendant Brown, came to an abrupt stop projecting the male plaintiff Busey forward against the dashboard or windshield, thereby causing an injury to his head and body with serious residuals, according to some of the testimony of a multitude of physicians who testified in the case. The evidence is in conflict as to the cause of the abrupt stop. There was testimony that Brown in the operation of the postal truck attempted to pass the salvage truck on its left hand side and that in so doing a piece of angle iron either fell from the salvage truck or was projecting from the salvage truck without any cloth or any other warning device thereon, and came in contact with the postal truck making a loud noise which caused Brown to come to the abrupt stop. The windshield and a portion of the metal front of the postal truck were damaged. There was also testimony that while the postal truck was attempting to pass the salvage truck the former struck the rear or side of the latter, which striking caused the driver of the postal truck to come to an abrupt stop. There is no dispute, however, as to where Busey was seated; and he violated the regulation by being seated where he was unless he comes within the exception contained in the regulation.

 On a motion for directed verdict, or for judgment n.o.v., I am required to construe the evidence most favorably to plaintiffs and give them the benefit of every reasonable inference arising therefrom, and then, before the motion can be granted, must conclude that all reasonable men must reach the same conclusion, namely, in this case, that plaintiff Busey was contributorily negligent, and that such negligence was a proximate cause of the injuries sustained. *fn3"

 The motion for judgment n.o.v. will therefore be denied.

 Now, on the third party claim against the United States, I am required to make a factual determination on these points myself, unrestricted by the criterion for determination of a motion for a directed verdict. In other words, I have the duty to weigh and evaluate the evidence and determine as a fact-finder whether the driver of the postal truck, Brown, as an agent of the United States, was concurrently negligent, bearing in mind that the burden of proof is on the third-party plaintiff to establish this fact by a preponderance of the evidence. On this basis I find that the driver of the postal truck, Brown, who was exonerated of blame by the jury in the third party complaint against him, was guilty of concurrent negligence in permitting Busey to ride on that part of the truck where he was riding in violation of the regulation referred to; that Busey did not come within the exception to the ...


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