336 F2d 801 Johnson v. United States

336 F.2d 801

Doris M. JOHNSON, Administratrix of the Estate of Joseph Samuel Johnson, deceased, Doris M. Johnson and Eustace G. Johnson, Appellants,
v.
UNITED STATES of America, Appellee.

No. 9523.

United States Court of Appeals Fourth Circuit.

Argued September 21, 1964.

Decided September 24, 1964.

C. Lydon Harrell, Jr., Norfolk, Va. (Harrell & Landrum, Norfolk, Va., on brief), for appellants.

Morton Hollander, Attorney, Department of Justice, (John W. Douglas, Asst. Atty. Gen., Walter H. Fleischer, Atty., Dept. of Justice, and C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, BOREMAN and BELL, Circuit Judges.

PER CURIAM.

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1

This plaintiff, under the Tort Claims Act, seeks damages for the wrongful death of her small child who was run over by a bus. The District Judge found as a fact that the driver of the bus was not negligent, and the plaintiff has appealed.

2

While the testimony was sufficient to support a contrary finding, the finding of no negligence on the part of the bus driver had an evidentiary basis. It was for the District Judge to make the subsidiary and ultimate findings, and his findings are binding upon appeal since they cannot be said to be clearly erroneous.

3

Affirmed.