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Wise v. George C. Rothwell Inc.

decided: April 23, 1974.

BESSIE H. WISE, FOR HERSELF AND AS ADMINISTRATRIX OF THE ESTATE OF ROBERT H. WISE, DECEASED, APPELLANT
v.
GEORGE C. ROTHWELL, INC. AND WILLIAM B. HARRINGTON, APPELLEES



D.C. Civil Action No. 3840 APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Van Dusen and Adams, Circuit Judges and Huyett, District Judge.

Author: Huyett

Opinion OF THE COURT

HUYETT, District Judge.

Appellant seeks reversal of the district court judgment, entered after trial without a jury, finding the appellee not negligent in the operation of a tractor trailer truck while proceeding from a private road onto a through highway.*fn1 Because we consider the district court to have applied an erroneous standard of care under Delaware law in determining the question of appellees' negligence and because we are unable to find on the record before us that appellant's decedent was contributorily negligent as a matter of law, we vacate the judgment of the district court and remand for consideration in accordance with our opinion.

Delaware Route 24 is a two-lane highway running east-west at the point where the vehicular accident giving rise to this action occurred. The plant complex of Townsend, Inc. (Townsend) is located on Route 24 two miles east of Millsboro, Delaware. A private road leading from the Townsend plant forms a T-intersection from the south with Route 24. For a mile west of the Townsend plant Route 24 is a straight road.

At about 10:45 P.M. on October 23, 1969, appellant's decedent, Robert H. Wise, was traveling eastward on Route 24. There is conflicting evidence in the record concerning the number of vehicles in front of the decedent's car as he approached the area of the Townsend plant. It is clear that there was at least one vehicle, a car driven by Ann Norwood, in front of the decedent's car. The district court found that there was also a truck operated by Paul Wothers between the decedent's car and the Norwood car traveling east toward the Townsend plant.*fn2 Norwood testified that she saw the headlights of a vehicle behind her as she turned a curve a little more than a mile before the Townsend plant. She was unable to determine, however, whether the vehicle behind her was a car or a truck; nor was she able to estimate the distance the vehicle behind her was from her car other than that the vehicle was no more than a half mile behind her car.*fn3

Appellee, Harrington, was at the time of the accident operating a tractor trailer owned by Rothwell. As the Norwood car, traveling on Route 24, approached the private roadway on the Townsend property, appellee's truck was either standing in the private roadway at the edge of Route 24 or just approaching Route 24 preparing to make a left turn onto Route 24. Having allowed the Norwood car to pass him on Route 24, Harrington pulled out onto Route 24 intending to turn left.

Harrington testified that he looked west after the Norwood car had passed him and saw a set of headlights. It was Harrington's testimony that when he pulled out from the private road the approaching vehicle was about a half mile away. He also testified that he was 10 to 15 seconds into his turn when the impact of decedent's car with the truck occurred. The left side of Wise's vehicle collided with the Rothwell truck at a point just in front of the rear tandem wheels of the trailer.*fn4

After analyzing the evidence in the record and after considering the credibility of the witnesses who had testified, the district court determined that sufficient time existed to allow Harrington to make a left turn onto Route 24 without creating an "immediate hazard" to the traffic approaching the private Townsend road. Largely crediting Harrington's testimony the district court found that at least ten seconds elapsed from the time Harrington began to cross Route 24 and the time the impact occurred.*fn5 Ten seconds was considered sufficient time to allow a vehicle traveling east at a reasonable speed to slow down so as to prevent a collision with a vehicle crossing Route 24 from the private road.

The Delaware statute governing the conduct of a person proceeding from a private road onto a through highway states:

The driver of a vehicle about to enter or cross a highway from a private road or driveway or from a crossover on a divided highway shall yield the right of way to all vehicles approaching on the highway.*fn6

We must determine the standard of care this statute imposes on a person proceeding from a private road onto a through highway. In making this determination we are bound to apply the standard of care the Delaware Supreme Court would apply were that court faced with the issue now before us. Commissioner v. Estate of Bosch, 387 U.S. 456, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967). And when there is "no decision by [the State's highest court] then federal authorities must apply what they find to be the state law after giving 'proper regard' to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bernhardt v. Polygraphic Co., 350 U.S. 198, 100 L. Ed. 199, 76 S. Ct. 273 (1956)." Commissioner v. Estate of Bosch, 387 U.S. supra, at 465. See also Quinones v. United States, 492 F.2d 1269 (3 Cir. 1974); In re Royal Electrotype Corporation, 485 F.2d 394 (3 Cir. 1973).

The Delaware Supreme Court has not addressed itself to the standard of care imposed by 21 Del. Code ยง 4133(a). In Malone Freight Lines, Inc. v. Johnson Motor Lines, Inc., 51 Del. 504, 148 A.2d 770 (Del. Supreme Ct. 1959), however, the court considered whether a driver of a truck was contributorily negligent in proceeding from a private road across the southbound lanes of a four-lane highway. The truck had proceeded safely across the two southbound lanes and had come to rest in a grassy crossover area between the north and southbound lanes. No part of the truck was then in the southbound lanes. While resting in the crossover area for the purpose of making a left turn onto the northbound lanes, the truck was hit by a truck traveling south. The southbound truck had veered off the highway onto the grassy area separating the south and northbound lanes attempting to pass a truck identified in the record only as the "X" truck which was also traveling south. The defendants, the owner and driver of the southbound truck, argued that plaintiff failed to look to his left as he crossed the southbound lanes and failed to ...


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