might have a bearing upon the case. His report shows that he found no skid marks, that the rear of the Baking Company truck had traveled to the right in a semicircle and came to rest off the road, on a dirt shoulder; that travel of the Navy truck after impact was unknown, only that it 'was overturned with the front facing the pole' and that it 'traveled 50' after impact,' and that there was broken glass and dirt in the east lane.
All of this is, however, consistent with the other facts. Taking into account the nature of the damage to the left front of the Baking Company truck which evidences a glancing blow, the position of the Baking Company truck as it swung around with any possible slight forward motion in connection therewith, the speed of the Navy truck as evidenced by the distance traveled and the subsequent overturning thereof, it is apparent that the direction of the momentum and propelling force would account for the position of the front of the Baking Company truck
and the position of glass and dirt on the highway.
Is is argued that the witness Lamon was not noticed by the driver of either truck and that this coupled with the fact that he did not stop and identify himself at the time discredits his testimony. He was a huckster, had been down to Barnegat, New Jersey, for 'a load of fish to take out and peddle,' and it was apparent no one was injured. He testified, 'I was going to ignore the whole thing because at the time of the accident the two drivers started arguing and went off and nobody asked me for my name then, so I got in my own vehicle and went to Camden.' This was a natural and consistent sequence.
Even if we accept the contention that when the driver of the Baking Company truck applied his brakes the front of the truck swerved across the center line, it would not alter the situation. The only reason for applying the brakes at that time was a sudden emergency created by the negligence of the other driver. He found himself in a position of peril through no fault of his own. This is not the type of case where an approaching driver is weaving back and forth or otherwise acting so erratically as to put another driver on notice. When Mars, driving the Baking Company truck, first saw the Navy car it was partly on the wrong side of the road and a quarter of a mile away. It moved back to its own side and continued to approach on its own side. This is a common occurrence when a driver, seeing a car approaching some distance away, realizes that he is too far over to the left of the road and returns to his side. Mars had a right to assume that the Navy truck would, in obedience to the rules of the road, stay on its own side until something occurred to make him think otherwise.
Unfortunately, the contemplated further action of a person causing an emergency is not usually known to the person faced with the emergency and subsequent events may show that choosing some other course of action would have been more advantageous. Consequently, the law does not require a non-negligent automobile driver to adopt the safest course or use the best judgment in an emergency.
One additional matter calls for comment. At the trial the record of a proceeding against one of the parties before a Justice of the Peace with relation to the accident was offered in evidence, and objection thereto made. Such evidence is inadmissible,
and the objection to the admission thereof must be and is accordingly sustained.
Conclusions of Law
1. Jurisdiction is vested in this Court by virtue of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.
2. The negligence of the driver of the vehicle owned by the United States was the proximate cause of the collision.
3. The driver of the vehicle owned by the General Baking Company was not negligent.
4. General Baking Company is entitled to recover damages against the United States in the sum of $ 400.
5. The United States cannot recover damages on its counterclaim.
Judgment will be entered accordingly.