The opinion of the court was delivered by: BYERS
This is a federal tort claim action brought by the plaintiff as the result of the rear end striking of his car by a Government truck at about 2:45 p.m. on September 7, 1958 in Clarkstown, Rockland County, New York. The plaintiff's car was at rest on Route 303, a few feet from the place where it merges with Route 9W.
An understanding of the happening will be promoted by observing a sketch which accurately depicts the general locality involved [Plaintiff's Exhibit 1]:[SEE ILLUSTRATION IN ORIGINAL]
It was agreed at the trial that Route 303 is about 16 to 18 feet wide and 9W is about 30 feet wide, and both are cement highways. 9W proceeds in a northerly direction, and the plaintiff intended to enter it passing the point of merger but he had come to a stop as above stated before so doing. It was raining perceptibly at the time and had been for some minutes, and the atmosphere was dark and overcast. There was no stop sign or traffic light at the place where the roads joined, and it is not disputed that the Government truck struck the plaintiff's car in the rear.
The former vehicle was being driven by the witness, Carl W. Howard, then in the United States Army, and it was a 1957 Chevrolet half-ton pick-up truck.
The plaintiff's car was a 1953 two-door Buick sedan, having a width of about six feet, as was true of defendant's truck.
It is undisputed that the distance from the curve on 303 to the place where the plaintiff's car was, is about 400 feet, and that the defendant's truck was about 112 feet from the plaintiff's car when Howard first observed the latter, which he thought was moving; within a second or so he realized his mistake and he was then about 100 feet from the plaintiff's car when he applied his brakes. On account of the wet surface of the road, the truck somewhat skidded and the rear and collision was the result.
Plaintiff says that his car moved forward from 10 to 15 feet as the result of the impact, while Howard puts it at from 3 to 7 feet. In view of the minor nature of the damage occasioned to the plaintiff's car, the latter dimension, namely seven feet, is accepted as the distance which the plaintiff's car travelled, and it is so found.
It is undisputed that the plaintiff was in unfamiliar territory as he was about to enter Route 9W, and in view of the existing weather conditions it was not negligence upon his part to stop his car, preparatory to deciding when it would be safe for him to proceed on Route 9W. He states that in order to stop, he first used his brake.
The testimony is in dispute as to whether the rear red lights on the plaintiff's car were working which would have given notice to the driver of an oncoming vehicle that the plaintiff's car had stopped. The plaintiff says that he had tested his lights that morning before starting on the trip during which the collision occurred, and he is corroborated by his wife. They both said that the lights were in good working order as their inspection showed.
Howard said that he saw no such lights but since, by his own testimony, his truck travelled less than 12 feet before he applied his own brakes, this disputed element of the case seems not to be important, and it is therefore found that the plaintiff is not to be charged with contributory negligence for having brought his car to a stop.
It is found that the defendant's truck was travelling at about 25 to 30 miles an hour at the time that Howard applied his brakes, and that cannot be thought to be an excessive rate of speed, although the truck had just rounded about a 45 degree turn, in view of the fact that Howard was transporting a passenger who required hospital treatment, and he would therefore naturally proceed as rapidly as feasible under existing conditions.
It seems to this Court that while the issue of negligence on the part of the Government truck is narrow and perhaps debatable, it should be resolved in favor of the plaintiff for the reason that it would seem a road 16 to 18 feet wide (which was occupied to the width of 6 feet) would afford to a careful following driver an opportunity to avoid such a rear end collision as actually took place. Howard had to decide whether to try to pass on either side of plaintiff's car or to stop his own truck, and while that decision was not easy to make, the fact that the collision took place is some evidence that a passing should have been attempted rather than a braking of the truck.
It is therefore found that the plaintiff has sustained his burden of proof of negligence on the part of the Government truck.
The dispute now turns upon the nature and extent of the plaintiff's damages.
The evidence shows that the reasonable value of the cost of repairs to the plaintiff's car, caused by this collision, was $ 218.78 which is the amount hereby found to be due to him, in lieu of the sum of $ 500 ...