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Gary v. Consolidated Forwarding Co.

October 30, 1940

GARY
v.
CONSOLIDATED FORWARDING CO. (TWO CASES); BERTRAND V. SAME.



Appeals from the District Court of the United States for the Eastern District of Wisconsin; F. Ryan Duffy, Judge.

Author: Evans

Before EVANS and TREANOR, Circuit Judges, and BRIGGLE, District Judge.

Plaintiffs Bertrand and Gary each sued defendant trucking company for injuries sustained when the car in which they were riding was forced off the road by defendant's truck. The actions were consolidated for trial and separate special verdicts*fn1 returned, favorable to each plaintiff, which were modified and reduced by the trial court and the judgments then entered thereon. Defendant appeals from both judgments, and plaintiff Gary, in her appeal, challenges the ruling of the court which reduced her verdict.

The appeals were consolidated for argument and will be disposed of in one opinion.

EVANS, Circuit Judge.

The appeals raise three major questions:

(1) Does the evidence support the jury's verdict that it was defendant's truck that was involved in the accident? (2) Was the trial court justified in reducing, by ten per cent., the amount of damages fixed by the jury, because of the contributing negligence of one of the plaintiffs - the driver of the automobile? (3) Did the court err in reducing the jury's award to Gary from $1,000 to $467?

Plaintiff Gary, in partnership with another, owned a dress shop in Milwaukee.

She had a "drawing account or salary" of $35 a week from the busness.

On July 20, 1938, she was on her way to Chicago, with Miss Bertrand, a teacher, and two others, to buy a dress for Miss Bertrand and a coat for one of the other women. Miss Bertrand was driving Miss Gary's car. They testified they had been driving behind a red truck for about fifteen minutes when Miss Bertrand decided to pass it and sounded her horn. When her front wheels were abreast the trailer's rear wheels the truck veered into the passing lane to avoid a stalled truck ahead of it, and the plaintiff's car was forced off the road and struck a culvert, causing the accident and injuries complained of.

(1) Identity of Truck Involved in Collision. Despite the unsatisfactory identification proof, we are, nevertheless, satisfied that a jury question on this issue was presented. With equal certainty we are satisfied that the evidence both as to plaintiffs' and defendants's negligence necessitated presentation to and determination by the jury.

Plaintiff Gary identified the truck by color and the word "Consolidated" printed on the back of the trailer. A state transportation inspector remembered seeing a Consolidated truck passing south of the scene of the accident shortly before the accident came to his attention. As against the defendant's accused driver's testimony that he passed the scene of the accident more than an hour later, and that he knew of no accident, these facts seem fragmentary. There was almost no rational explanation other than the truck was defendant's. We are, of course, not making independent findings, but merely holding that the evidence was such that a jury might well have found, as they did find, that it was defendant's truck that turned into the left lane as plaintiffs were attempting to pass.

(2) reduction of Damages by Ten Per Cent for Plaintiff's Negligence. On the negligence issues there was ample evidence of neglect on the part of both the driver of the truck and the driver of the car. Again it is not a case of weighing evidence, or determining veracity. We must assume that the jury could and did accept plaintiffs' testimony. On such assumption defendant's negligence was established. Likewise, and with equal certainty, we are ...


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