338 F2d 964 Smith v. Fihelly

338 F.2d 964

Frank Roy SMITH, Appellant,
Arthur FIHELLY and Henry Bagelmann, Appellees.

No. 9584.

United States Court of Appeals Fourth Circuit.

Argued November 10, 1964.

Decided November 19, 1964.

G. Clinton Moore, Richmond, Va. (Franklin J. Carter and Wright & Moore, Richmond, Va., on brief), for appellant.

Harry W. Goldberg, Washington, D. C. (Alfred Z. Bernstein, Alexandria, Va., on brief), for appellees.

Before BOREMAN and BELL, Circuit Judges, and WINTER, District Judge.


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A judgment rendered for appellees by the district judge, sitting without a jury in a diversity case, arising out of a collision between two vehicles both traveling south on the Richmond-Petersburg Turnpike, serves as a basis for this appeal. A vehicle operated by appellee Fihelly at approximately 55 miles per hour in the extreme right hand lane of the three lane south bound portion of the Turnpike collided with a vehicle operated by appellant in a lane or between lanes to the left and front of Fihelly's vehicle when appellant's car veered to the right as Fihelly's vehicle was about to overtake it.


On conflicting evidence, the district judge found appellant negligent and appellant's negligence a proximate cause of the accident. The district judge did not make a definite ruling upon the question of Fihelly's negligence raised by appellant's defense of contributory negligence because that question involved a construction of state law on which the Supreme Court of Appeals of Virginia had not spoken; but, again on conflicting evidence, the district judge found that the asserted negligence on the part of Fihelly was not an efficiently contributing cause of the accident.


We have examined the evidence relevant to the issue of whether any negligence on the part of Fihelly caused or contributed to the happening of the accident and we cannot say that the finding of the district judge was clearly erroneous, Rule 52, Federal Rules of Civil Procedure; Johnson, Administratrix v. United States, 336 F.2d 801 (4 Cir. 1964); United States v. Still, 120 F.2d 876 (4 Cir. 1941), cert. den., 314 U.S. 671, 62 S.Ct. 135, 86 L.Ed. 537 (1941). Therefore, the judgment of the lower court is