283 F2d 178 Leggett v. J B Wallace W L

283 F.2d 178

Mrs. Clara LEGGETT, Appellant,
J. B. WALLACE and W. L. Biddle, Appellees.

No. 18346.

United States Court of Appeals Fifth Circuit.

October 21, 1960.

Ronald F. Adams, Jesup, Ga., for appellant.

Chris B. Conyers, Brunswick, Ga., Reid W. Harris, Brunswick, Ga., Gowen, Conyers, Fendig & Dickey, Brunswick, Ga., for appellees.

Before JONES, Circuit Judge, and HOOPER and JOHNSON, District Judges.


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The appellant sued to recover for the death of her son, Archie Leggett, who died from injuries received in a highway collision. Leggett and Richard Feenker were in a car owned and being driven by Arthur Streiter. In the before-daylight hours of the morning of July 5, 1958, the car with Streiter and his two passengers was going North on U. S. Highway No. 17 and, when out of Riceboro, Georgia, the car collided with a tractortrailer owned by the appellee Wallace and driven by the appellee Biddle. Streiter and Leggett were both killed in the accident. The only evidence offered by the appellant to show negligence of the appellees was the testimony of the third occupant of the car, Richard Feenker. This witness testified that he had been asleep. He awoke when the car went off the road and gravel began hitting the car. He estimated that the car was off the road for about forty feet. He was asked to say what happened when the car ran off the road, and he replied:


"We ran off the road and rocks and gravel started hitting the bottom of the car, and I woke up and saw some real bright headlights, and Streiter said something about dimming them, or something, and that is all I remember."


On cross examination he could not say that the truck drove over the center line. Such was the evidence of the appellant upon which she relied to establish actionable negligence of the appellees. The district court directed a verdict and entered judgment for the appellees. On appeal the sole question is whether there was sufficient evidence to take the case to the jury.


Construing, as we must, the evidence in a light most favorable to the plaintiff, it shows no more than that the car in which the appellant's son was riding went off the road, came back on the road and collided with the appellees' truck. The seeing, by the witness, of bright headlights does not establish, prima facie, that there was a failure of the truck driver to dim its lights which was the cause of the collision. The appellant had the burden of showing the negligence of the defendant as a cause of the injury. Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443; Wright Contracting Co. v. Davis, 90 Ga.App. 585, 83 S.E.2d 567. Cf. State Farm Mutual Auto Insurance Co. v. Yszara, 5 Cir., 1959, 263 F.2d 937. The appellant failed to make the required proof. The judgment of the district court is correct and is