303 F2d 29 Reddy v. United States
303 F.2d 29
Thomas REDDY, Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.
United States Court of Appeals Second Circuit.
Argued April 25, 1962.
Decided May 18, 1962.
Samuel Weingrad, New York City, for plaintiff-appellant.
Philip Silverman, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., for the E. D. of New York, Brooklyn, N. Y., on the brief), for defendant-appellee.
Before MOORE, SMITH and MARSHALL, Circuit Judges.
Appellant, claiming to have been struck and injured by a government Post Office vehicle, appeals from a judgment for defendant upon the ground that it is against the weight of credible evidence. After hearing the testimony of plaintiff, the driver of defendant's Post Office tractor-trailer, a police officer who took brief statements from plaintiff and the driver, the driver of a cement mixer who observed the tractor-trailer passing the mixer and a mechanic who tested the tractor-trailer's brakes, the trial court concluded that the operator of the government vehicle "acted with reasonable prudence under the circumstances and that the negligence of the plaintiff contributed to the happening of the accident." A review of the entire transcript and the exhibits received in evidence supports the trial court's opinion that the credible evidence shows that plaintiff, a pedestrian, while attempting to cross a vehicular roadway between street intersections, became confused upon the approach of defendant's vehicle and that the swerving to the left by the truck was an attempt by the driver to avoid the accident. Plaintiff failed to sustain his burden of proving defendant to have been negligent.