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Macgibbon v. Smalls

decided: April 27, 1971.

BRUCE MACGIBBON, APPELLANT AND TINA MACGIBBON
v.
GODFREY SMALLS AND WARREN EMANUEL



Kalodner, Freedman*fn* and Adams, Circuit Judges.

Author: Adams

Opinion OF THE COURT

ADAMS, Circuit Judge.

This appeal arises from a rear-end collision between an automobile driven by plaintiff Bruce MacGibbon and a taxi driven by defendant Warren Emanuel, on January 22, 1968, on a city street in St. Thomas, the Virgin Islands.

The sequence of events which led up to the accident is as follows: A third vehicle, a taxi, driven by defendant Godfrey Smalls, when hailed by a passenger, came to a rolling signaled stop. Defendant Emanuel slammed on his brakes and his taxi came to an unsignaled screeching stop within a foot of Smalls' taxi. Plaintiff MacGibbon, who was driving behind Emanuel's car, traveled some sixty feet after becoming aware that the preceding car or cars were stopping but was unable to come to a stop and collided with Emanuel's taxi, thus causing injury to MacGibbon's passenger, Tina MacGibbon, and property damage to Emanuel's taxi and plaintiff's car.

Bruce MacGibbon sued Smalls and Emanuel for the damage to his vehicle,*fn1 and Tina MacGibbon sued them for personal injuries she sustained.*fn2 Smalls' answer contained a request for dismissal of the complaint as it pertained to him.*fn3 Emanuel asked for dismissal of the complaint as against him and counterclaimed for judgment against Bruce MacGibbon for the damage done to his taxi.*fn4

After a trial, the Municipal Court of the Virgin Islands concluded that Emanuel and Bruce MacGibbon were contributorily negligent and not entitled to recover from each other, that Tina MacGibbon was not negligent and was entitled to recover damages from Emanuel, and that Smalls was not negligent and was entitled to reasonable attorney's fees and costs from the plaintiff Bruce MacGibbon.*fn5

Bruce MacGibbon appealed to the District Court of the Virgin Islands from the denial of recovery for his property damage and from the award to Smalls against him for counsel fees and costs. The District Court found that the Municipal Court's findings of fact as they pertained to appellant were not clearly erroneous and were supported by evidence in the record and accordingly affirmed. This appeal followed.*fn6

Mr. MacGibbon takes issue with what the Municipal Court labels finding of fact 7, which states:

"That 'although ordinarily a signal, warning vehicles in the rear, was necessary when the vehicle in front was stopping, nevertheless there was imposed upon the operators of the rear vehicles the corresponding duties of having their vehicles under such control and at such a distance from the car ahead that when a sudden stop was made the vehicle could be brought to a standstill without striking the one immediately in front of it.' Russell v. Furniture Renewal, Inc., 177 Tenn. 525, 151 S.W.2d 1066, 85 A.L.R.2d 645 (1941). See also Lafforthun v. Strauss, 192 Misc. 88, 80 N.Y.S.2d 329, 85 A.L.R.2d 645; Peterson v. Doll, 184 Minn. 213, 238 N.W. 324, 85 A.L.R.2d 652; Farmer v. Nevin Bus Lines, 107 Pa.Super. 153, 163 A. 41."

It was with the aid of this finding that the Municipal Court found Mr. MacGibbon contributorily negligent and therefore deprived him of a right to recover.

Although characterized as a finding of fact, it is clear that finding 7 is a conclusion of law and therefore is not to be reviewed here on the basis of the "clearly erroneous" standard. Finding 7, which purports to be a quote from a Tennessee opinion, is only a paraphrase.*fn7 If the Tennessee opinion as actually written were followed literally, paintiff would not have had the duty to be able to stop in this particular case since Emanuel did not come to a sudden stop because of an emergency or in obedience to a traffic signal. This may be the rule in Tennessee, but it is not necessarily the rule in the Virgin Islands, and the reliance of the Municipal Court on a quote from a Tennessee opinion which it believed supported its position cannot now be said to change or modify the law of the Virgin Islands. The question before us then is: Does the paraphrase in finding 7 accurately reflect the law of the Virgin Islands?

The Virgin Islands Code*fn8 requires that:

"No person shall drive a motor vehicle on a public street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding ...


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