321 F2d 902 Curry v. Ott T
321 F.2d 902
Althea CURRY, Administratrix of the Estate of Leslie Curry, Deceased, et al., Appellants,
Mrs. Mildred Wattigny OTT, Executrix of the Estate of Melvin T. Ott, Deceased, Appellee.
United States Court of Appeals Fifth Circuit.
August 20, 1963.
Jason H. Floyd, J. Boyce Holleman, Gulfport, Miss., Floyd & Holleman, Gulfport, Miss., of counsel, for appellants.
P. D. Greaves, Gulfport, Miss., Walter J. Phillips, Bay St. Louis, Miss., for appellee.
Before PHILLIPS,* WISDOM and GEWIN, Circuit Judges.
This case arose out of a head-on collision between automobiles driven by Leslie Curry and Melvin T. Ott. Both drivers were killed. Mrs. Curry sued Mrs. Ott, Executrix of Ott's Estate, for the wrongful death of her husband. Mississippi recognizes the doctrine of comparative negligence. The case was tried in the district court without a jury. There were no eye-witnesses. The evidence showed that the left wheels of Curry's automobile were at least two and a half feet across the center line on Ott's side of the highway. After the plaintiff rested, the trial judge sustained the defendant's motion "to exclude evidence," dismissed the complaint, and granted judgment for the defendant.
This Court has considered the briefs and argument and carefully reviewed the record in the light most favorable to the plaintiff. We hold that the trial judge gave full effect to Mississippi law and that the evidence supports his finding that the plaintiff failed to prove negligence on the part of Melvin Ott which caused or contributed to the accident. The judgment is
Of the Tenth Circuit, sitting by designation