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KEENE v. GEORGE ENTERPRISES

November 2, 1956

EDITH KEENE AND WALLIS KEENE, PLAINTIFFS,
v.
GEORGE ENTERPRISES, INC., D/B/A JIMMIE LYNCH DEATH DODGERS, DEFENDANT. EMILIE MILNER AND M.B. MILNER, PLAINTIFFS, V. GEORGE ENTERPRISES, INC., D/B/A JIMMIE LYNCH DEATH DODGERS, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

This case was tried to the Court without a jury on October 10 and 11, 1956, and at the conclusion of the trial the Court took the case under advisement pending receipt of briefs from the parties in support of their respective contentions. The briefs have been received, and the Court, having considered the pleadings, evidence, stipulations, and briefs of the parties, now makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The plaintiffs, Edith Keene and Wallis Keene, are citizens and residents of the State of Texas, and the plaintiffs, Emilie Milner and M.B. Milner, are citizens and residents of the State of Oklahoma. The defendant, George Enterprises, Inc., d/b/a Jimmie Lynch Death Dodgers, is an Ohio corporation. The amount involved, exclusive of interest and costs, exceeds the sum of $3,000.

2.

On June 13, 1956, at approximately 8:30 a.m., the plaintiff, Wallis Keene, was driving a 1956 Buick in a westerly direction on U.S. Highway 82 at a point about two miles west of the town of Montrose, Arkansas. Mr. Keene's wife, Edith Keene, and his sister, Mrs. Milner, were riding with him in the automobile which was owned by the plaintiff, M.B. Milner. Mr. and Mrs. Keene and Mrs. Milner had been to Lake Providence, Louisiana, to attend a funeral and they were returning to the Keenes' home in Wiley, Texas, on the morning in question. They were using Mr. Milner's car since it was air conditioned, while Keene's car was not.

It was raining, but visibility was good. The highway was what is generally known as a "black top" highway.

3.

On the same morning defendant's employee, Bobby Pittman, was driving defendant's 1956 Dodge in an easterly direction on U.S. Highway 82. This Dodge automobile was a part of a convoy which included several trucks and automobiles owned by the defendant. Pittman's position in the convoy was behind a pickup truck owned by defendant, and defendant's drivers had been instructed to keep at a distance of 300 feet apart when traveling.

4.

Shortly before the accident Keene was driving the Buick automobile at a speed of approximately 55 to 60 miles per hour. As he approached a "Y" he noticed a black Chevrolet coming from the opposite direction on Highway 82. Highway 82, in the direction Keene was going, curved to the left as it intersected with the old highway which ran in an easterly direction to and through the town of Montrose. Keene noticed that the black Chevrolet was slowing down, and he thought that the driver might be preparing to turn across in front of him and into the old highway going into Montrose. Keene slowed the Buick automobile to a very slow speed, but then seeing that the driver of the Chevrolet was apparently waiting for him, Keene continued on and had reached a speed of 30 to 35 miles per hour when the defendant's Dodge automobile suddenly came out from behind the Chevrolet and directly into Keene's lane of travel. Keene applied his brakes but was unable to stop in time to avoid colliding head-on with defendant's automobile.

5.

Immediately prior to the accident defendant's driver, Bobby Pittman, was driving defendant's Dodge at a speed of approximately 45 miles per hour. He had been following behind defendant's pickup in the convoy, but about a mile and a half before reaching the scene of the accident, the black Chevrolet mentioned in Finding of Fact No. 4 had pulled out of a side road and was proceeding in front of the Dodge being driven by Pittman.

As Pittman approached the "Y" he was following about 100 feet behind the Chevrolet and was driving at a speed of approximately 45 miles per hour. When the Chevrolet slowed down, Pittman applied his brakes and the Dodge he was driving skidded to the left on the wet pavement. When Pittman saw the Buick coming toward him, he attempted to drive on across the highway and onto the north shoulder, but, as heretofore stated, the Dodge and Buick collided head-on in the north lane of the highway. Defendant's Dodge was traveling at an angle across the highway, and the primary point of impact occurred between the right front of defendant's Dodge and the right front of plaintiff's Buick. The collision occurred about 300 feet west of the "Y". Plaintiffs' automobile had already gone around the curve, and the collision occurred on a straight stretch of highway.

After the impact defendant's Dodge was still upright and was at an angle, with the right rear wheel still on the pavement and most of the vehicle on the north shoulder. Plaintiff's Buick also remained upright and was on the pavement in the north lane of the highway, sitting at an angle with the front end toward the north shoulder.

6.

After the collision Keene went around to the other side of the Buick and helped his sister, Mrs. Milner, out of the car. She was stunned and lay down on the pavement. Her face and mouth were bleeding profusely. Mrs. Keene, who had been riding in the middle, attempted to get out of the car but was unable to do so because of her leg. Her nose and mouth were also bleeding. It was about 45 ...


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