222 F.2d 604 (1st Cir. 1955)
On the morning of December 17, 1951, Walter G. Harriman drove his Chevrolet car southbound on a public highway in New Hampshire from Colebrook toward North Stratford.1 Frank E. Marshall rode as a passenger in the front seat.2 Marshall was Harriman's father-in-law and employee in an insurance business, and the two were traveling to enable Marshall to keep a business appointment.3
The road was covered with hard-packed snow and ice and was quite slippery.4 As Harriman drove at 30 to 35 miles per hour on the right-hand side of the highway, he approached a sharp uphill curve to his right.5 A heavy oil truck owned by Socony-Vacuum Oil Co., Inc., and driven by Warren K. Prince approached from the opposite direction.6 Upon ample testimony the jury could find that the truck cut the corner by swinging over to the westerly side of the highway.7 Harriman turned into the snowbank to avoid a collision, causing the Chevrolet to skid about 50 feet and stop completely off the highway on the westerly side.8
Prince stopped the oil truck on the easterly side of the highway opposite the stalled Chevrolet.9 Harriman and Marshall got out of the car.10 Prince inquired if they were okay and offered assistance with a chain.11 Recognizing the danger of the truck's position in a blind spot, Prince remarked that someone ought to go up the grade to warn approaching northbound traffic.12 Marshall undertook to go up the hill to warn any cars that might be approaching the crest in a northerly direction. He walked southerly for about 75 or 80 feet on the right-hand side of the highway.13
Shortly thereafter, a car driven by Robert H. Nugent came over the crest.14 Nugent turned left to avoid the stopped truck, skidded across the banked curve, struck a plank guard fence, and then hit Marshall, severely injuring him.15 Nugent's car continued out of control and struck the rear fender of the Chevrolet.16 The injury to Marshall occurred within a minute or two after he started up the hill.17
Marshall filed his complaint in the district court against both Socony-Vacuum Oil Co., Inc., and Nugent as joint tortfeasors.18 Complete diversity of citizenship existed.19 After trial, the jury returned a verdict for Marshall against Socony in the amount of $25,000 and a verdict for Nugent.20 The district court entered judgments accordingly.21
Whether Marshall was guilty of contributory negligence as a matter of law?22
Under New Hampshire law, a plaintiff is guilty of contributory negligence only when the voluntary encounter with a known risk constitutes an unreasonable risk that a reasonable person in the plaintiff's position would not have undergone.23 Mere awareness of physical danger does not establish the defense as a matter of law.24
No. The established facts demonstrate that Marshall, as a passenger and employee with an interest in resuming the business trip, responded to Prince's suggestion by walking up the hill to warn northbound traffic after the Socony truck had cut the corner and forced the Chevrolet off the road into the snowbank.25 Marshall proceeded on the westerly side approximately four feet from the snowbank.26 The injury occurred within a minute or two while the traffic mix-up persisted.27 A jury could reasonably conclude that this conduct aligned with what a prudent person would do to facilitate getting the vehicle back on the highway under the circumstances created by the initial negligence.28
Marshall was not required to remain passive on the snowbank.29
Marshall was not guilty of contributory negligence as a matter of law, and the district court properly submitted the issue to the jury.30
Whether the negligence of Socony-Vacuum Oil Co., Inc.'s servant was the proximate cause of Marshall's injuries?31
A defendant's negligent conduct constitutes the proximate cause of injury when the harm results from the operation of a risk the foreseeability of which rendered the conduct negligent.32 This holds even if intervening forces such as a third party's act occur, provided the chain of events remains unbroken and the situation has not stabilized to normalcy.33
Yes. Prince's negligence in cutting the corner created ongoing risks that persisted when the truck stopped in the blind spot, blocking the northbound lane and prompting Marshall to assist by warning traffic.34 The established facts show that Nugent's skidding car struck Marshall while the traffic disruption from the initial corner-cutting remained active.35 The injury occurred shortly after Marshall began walking up the hill and before the Chevrolet could be towed back onto the highway.36
This sequence falls within the bundle of risks a negligent driver should foresee in a highway tie-up on an icy, banked curve, rather than a remote or stabilized consequence.37
The negligence of Socony-Vacuum Oil Co., Inc.'s servant was the proximate cause of Marshall's injuries, and the district court correctly left the issue to the jury.38
Whether the conduct of Socony-Vacuum Oil Co., Inc.'s servant in stopping the truck was within the scope of his employment?39
Yes. Prince, while driving the Socony oil truck on its authorized route, stopped it on the easterly side opposite the stalled Chevrolet after cutting the corner.42 The established facts establish that Prince never abandoned custody of the truck.43 The blocking of the lane resulted directly from his operation of the vehicle in the course of employment.44
The brief stop, even if partly motivated by an offer to assist with towing, constituted conduct incidental to the journey rather than a departure from it.45
The conduct of Socony-Vacuum Oil Co., Inc.'s servant in stopping the truck was within the scope of his employment, rendering Socony liable for the resulting negligence.46
Whether the district court abused its discretion in denying Marshall's motion for a new trial against Nugent?47
A district court does not abuse its discretion in denying a motion for new trial on the ground that the verdict was against the weight of the evidence when the issue of negligence presented a reasonably disputable question of fact properly submitted to the jury under appropriate instructions.48
No. The established facts show that Nugent's car came over the crest, turned left to avoid the stopped truck, skidded across the banked curve, struck the guard fence, and then hit Marshall before colliding with the Chevrolet.49 Although the evidence supported a strong case for Nugent's negligence, it did not compel a finding as a matter of law that Nugent was negligent.50 The district court properly instructed the jury on the issue.51 The jury's verdict for Nugent therefore fell within the range of reasonable outcomes that the trial judge could decline to disturb.
The district court did not abuse its discretion in denying Marshall's motion for a new trial against Nugent.52
Whether Socony-Vacuum Oil Co., Inc. has standing to appeal from the judgment in favor of Nugent?53
A party lacks standing to appeal from a judgment in favor of a co-defendant when it neither asserted a cross-claim against that co-defendant in the district court nor otherwise litigated any claim of right against it at trial.54
No. Socony filed no cross-claim against Nugent under Rule 13(g) and made no claim of right against Nugent in the district court.55 The established facts confirm that Socony first sought relief against Nugent only after the jury returned its verdict, by moving to vacate the judgment in Nugent's favor.56 This post-verdict effort came too late to create standing for an appeal from the judgment exonerating Nugent.57
Socony-Vacuum Oil Co., Inc. has no standing to appeal from the judgment in favor of Nugent, and the appeal is properly dismissed.58