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WASHABAUCH v. UNITED STATES

April 25, 1949

WASHABAUGH
v.
UNITED STATES



The opinion of the court was delivered by: WATSON

The plaintiff, Herbert H. Washabaugh, instituted this action to recover damages for injuries received in a collision which, it is alleged, was caused by the negligence of Wilfred Wills, who was driving a United States Army station wagon, and was acting in the line of his duty as a member of the military forces of the United States of America, the defendant. The action was instituted under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq. (now Secs. 1346, 2671 et seq.).

The plaintiff, at the time of the collision giving rise to this action and for a number of years prior thereto, resided in Chambersburg, pennsylvania, in the Middle District of Pennsylvania. Under the Federal Tort Claims Act any civil action on a tort claim against the United States may be prosecuted in the judicial district where plaintiff resides. Therefore, this Court has jurisdiction in this action.

 The collision, from which plaintiff alleges his damages ensued, occurred in the City of Hagerstown, Maryland. Under the Federal Tort Claims Act the standards and tests of the State where the alleged wrongful or negligent act was committed are to be used to determine whether a claim has been established upon which recovery can be allowed and the nature and extent of recovery. Van Wie v. U.S., D.C.N.D. Iowa 1948, 77 F.Supp. 22; State of Maryland v. United States, 4 Cir., 1947, 165 F.2d 869, 1 A.L.R.2d 213. Therefore, in this action, the law of the State of Maryland controls on the questions of negligence and amount of recovery, if any.

 This action was tried before the Court without a jury. From the legal evidence received at the trial, the Court finds the facts to be as follows:

 1. The plaintiff, Herbert H. Washabaugh, is a resident of the Borough of Chambersburg, Franklin County, Pennsylvania, in the Middle District of Pennsylvania.

 2. On August 17, 1945, Wilfred Wills was driving a United States Army station wagon, proceeding west on Washington Street, approaching the intersection of Washington and Mulberry Streets in the City of Hagerstown, Maryland. The plaintiff was driving a laundry truck, proceeding north on Mulberry Street, approaching the intersection of Washington and Mulberry Streets in the City of Hagerstown, Maryland.

 3. When the United States Army station wagon, operated by Wilfred Wills, reached the point at which it was entering the intersection of Washington and Mulberry Streets, in the City of Hagerstown, Maryland, the traffic light facing it, or facing east on Washington Street, was red. When the laundry truck, operated by the plaintiff, reached the point at which it was entering the intersection of Washington and Mulberry Streets, in the City of Hagerstown, Maryland, the traffic light facing it, or facing south on Mulberry Street, was green.

 4. When plaintiff's laundry truck had proceeded more than half way across the said intersection it was struck along its front right door, front right fender and front right bumper by the United States Army station wagon, operated by Wilfred Wills.

 5. Wilfred Wills failed to obey the traffic light and proceeded to cross the intersection of Washington and Mulberry Streets in the City of Hagerstown, Maryland, while the traffic light facing him, or facing east on Washington Street, was red. This failure to obey the traffic light was a negligent act on the part of Wilfred Wills and was the proximate cause of the collision and injuries received by the plaintiff.

 6. The plaintiff obeyed the traffic light and proceeded to cross the intersect intersection of Washington and Mulberry Streets, in the City of Hagerstown, Maryland, while the traffic light facing him, or facing south on Mulberry Street, was green. There was no contributory negligence on the part of the plaintiff.

 7. At the time of the collision both Washington and Mulberry Streets, at the point where they intersect, were dry. At the time and place of the collision, visibility for drivers was good.

 8. At the time of the collision Wilfred Wills was performing his duties as a military policeman in the Army of the United States, and was returning from police patrol observations.

 9. At the time of the collision, Wilfred Wills was a member of the military forces of the United States and was acting in the line of his duties as such.

 10. As a result of said collision, the plaintiff suffered injuries to his lower spine, which have and will continue to cause ...


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