The opinion of the court was delivered by: GALSTON
This is a personal injury action instituted pursuant to Federal Tort Claims Act of August 2, 1946, 28 U.S.C.A. §§ 921, 946.
It is alleged that at the time of the accident the plaintiff was a passenger in an automobile owned and operated by the defendant Philip Udall.
The Udall vehicle was traveling north on Route 17, approaching Savannah, Georgia. An Army bus was being operated, managed and controlled by the defendant, United States of America, and was traveling in the opposite direction. Negligence is charged against both defendants. However, when the action was called for trial on December 5, 1955, counsel declared that the defendant Udall had paid the plaintiff the sum of $ 10,000 in settlement of the cause of action against him; so the trial proceeded against the remaining defendant, United States of America.
The injuries which the plaintiff sustained arose out of the collision between the Udall car and the Army bus. On the issue of negligence the witnesses for the plaintiff were herself, Udall and Maki, whose testimony was taken by the plaintiff by deposition. The Government witnesses were the driver of the bus, Maki; Captain Bierly, an Army official riding in a car driven by Sgt. Boyer which was following the bus driven by Maki; Boyer, Sgt. Frank Whitney, a passenger in the Army bus, and police officer Witherington, whose testimony was taken by deposition.
It is not easy to reconcile the different versions. Udall described the accident as happening after he had been forced off the northbound lane by a vehicle traveling in the opposite direction, as a result of which he had to drive on the soft shoulder of the road to the right of the northerly lane. The shoulder was perhaps two or three inches below the level of the road. In endeavoring to get back on the road from the shoulder, he proceeded in such a way as to head towards the rear left side of the Army bus. Udall said that the bus was coming towards him and that it was in the center of the road and over the white line dividing the lanes. Asked approximately how many inches or feet the Army vehicle was over that line, he answered:
'I can't say that; I didn't measure it; it was about a foot or two over the white line, the center line.'
It must be observed that if the Army bus was but a foot or two over the white line it is hard to believe his statement that
'As far as I could see, the bus was traveling in the center of the road.'
He said he continued to proceed in a 'straight' direction, though he could not tell what the distance was from the right side of his car to the right side of the road. Further on he was asked:
'Q. How far was the left side of your car from the white line? A. Well, that I imagine it was about a foot to two feet.'
Now it is not easy to reconcile Udall's testimony about the position and speed of his own car with the payment by him of $ 10,000 in settlement of the plaintiff's claim of negligence against him. If he was free from negligence, as he contended at the trial, why pay the plaintiff $ 10,000 in settlement of her claim that he was guilty of negligence?
As for Mrs. Glenn, she testified that as they pulled back on the road from the soft shoulder, she was looking at billboards, enjoying the scenery and looking to her right. Her testimony was somewhat along these lines:
'Q. Did you hear anything just before you saw the Army vehicle? A. Do you mean did I hear anyone exclaiming anything?
'Q. Yes. Tell the Court what you heard. A. I heard Mr. Udall say; '.oh my God.' I looked up quickly. * * * I saw this big bus coming towards me. ...