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DEMPSEY v. UNITED STATES
August 31, 1959
C.O. DEMPSEY, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT (DON DEMPSEY, THIRD-PARTY DEFENDANT).
The opinion of the court was delivered by: John E. Miller, Chief Judge.
This is a suit for damages arising out of a collision between a
motor vehicle belonging to the United States and a motor vehicle
belonging to and operated by Don Dempsey. The plaintiff, C.O.
Dempsey, was a passenger in the car driven by his son, Don
Dempsey. The proceedings are brought against the United States of
America pursuant to the provisions of the Federal Tort Claims
Act, 28 U.S.C.A. §§ 1346, 2674.
The plaintiff contends that Howard K. Farison, the Government
employee driving the Government car, was negligent in failing to
yield the right of way to the car in which the plaintiff was a
passenger and in failing to keep a proper lookout and exercise
The Government admits that Farison was an employee of the
United States and was acting within the scope of his employment
and in the line of duty at the time the collision occurred. The
Government denies any negligence on the part of Farison, and
alleges that the plaintiff was guilty of contributory negligence
in failing to adequately warn the driver of the car in which he
was a passenger of the approach of the Government vehicle and of
the impending danger.
It is further contended on behalf of the Government that the
plaintiff and his son, Don Dempsey, were engaged in a joint
enterprise, and that the son was guilty of negligence in failing
to keep a proper lookout and control, in failing to yield the
right of way, in failing to signal before making a left turn, and
that the negligence of the son is imputed to the plaintiff.
The Government also filed a third-party complaint against Don
Dempsey alleging the same acts of negligence as set out above.
The case was tried to the court on August 19, 1959, and at the
conclusion of the testimony was submitted. The court has
considered the pleadings, the testimony and the exhibits, and now
makes and files herein its findings of fact and conclusions of
law, separately stated.
The plaintiff is an 81 year old resident of the City of
Booneville in the Western District of Arkansas. On May 27, 1958,
the plaintiff and his wife traveled from their home in Booneville
to Mountain Home, Arkansas, in an automobile owned and operated
by a son, Glenn Dempsey. The purpose of the trip was to visit
another son, the third-party defendant, Don Dempsey, who then
resided in Mountain Home.
Several hours after arriving in Mountain Home, the plaintiff
and his son Don embarked on a fishing trip to Lake Norfork,
located some 14 miles away. The trip was made in an automobile
owned and operated by Don Dempsey and under his exclusive
direction and control. They traveled southeast from Mountain Home
on State Highway No. 5 until they reached the town of Ellis,
sometimes called Salesville, where they turned onto State Highway
177 and traveled northeast from Ellis. Their destination was a
public boat dock on Lake Norfork where Don Dempsey kept a boat.
The road from Ellis to the Norfork Dam area, a portion of which
is designated Arkansas State Highway 177, was originally
constructed by the United States Government during the
construction of the dam as an access road. Upon completion of the
dam the portion of the road, measuring .99 of a mile, between
Ellis and the federal reservation, was turned over to the State
of Arkansas and subsequently designated State Highway 177. The
State of Arkansas maintains the highway from Ellis to the
boundary of the federal reservation, and the United States
Government maintains the continuation of the highway from there
to the area of the dam, the boat dock, and other recreational
facilities. This highway is the chief access road to the dam and
to the recreational areas on that part of the lake. It is heavily
traveled by tourists and sportsmen. The only indication of the
boundary line of the federal reservation is a cattle guard across
the road. The road is of asphalt construction.
Howard K. Farison is now and was at all times material herein
employed by the Corps of Engineers of the United States Army as
an engineer on the Bull Shoals and Norfork Dams projects. On the
afternoon of May 27, 1958, he was engaged in his official duties
at the powerhouse adjacent to the dam. Shortly after 5 o'clock he
left the powerhouse and was returning to his office in Mountain
Home. He was proceeding along a Government-owned road, commonly
referred to as the Powerhouse Road. This road is of asphalt
construction and is approximately 700 feet long. It runs from the
powerhouse to the continuation of State Highway 177 referred to
above. It is used primarily by the Government employees working
at the powerhouse and also by occasional visitors to the
Farison had traveled this route three or four times a week for
several years preceding the accident, and was familiar with the
traffic conditions on the Powerhouse Road and on the continuation
of Highway 177. Don Dempsey was the owner of a boat housed at the
boat dock at the terminus of the continuation of Highway 177 and
had frequently traveled the route for a period of two years prior
to the accident.
When the plaintiff and his son crossed the cattle guard on
State Highway 177 and entered the Government reservation, the
Dempsey car was traveling in an easterly direction between 40 and
45 miles per hour. As they neared the intersection with the
Powerhouse Road, where the road gradually turns in a
northeasterly direction, the plaintiff observed the Government
car operated by Farison traveling in a westerly direction along
the Powerhouse Road about 100 yards from the intersection. Don
Dempsey also observed the Government car when it was 200 feet
from the intersection, and slowed his speed to 30 to 35 miles per
The time of the collision was 5:20 p.m. on May 27, 1958. The
weather was clear and warm, and the asphalt surface of the road
The intersection of the continuation of Highway 177 and the
Powerhouse Road is somewhat difficult to picture. It might be
best described as a distorted "Y" type intersection. The
continuation of Highway 177 runs in an almost east and west
direction prior to the intersection, but just west of the
intersection it veers to the left in a northeasterly direction.
The Powerhouse Road at this point runs in an east and west
direction in such a manner as to appear to be an extension of
Highway 177 going east. There were no traffic control devices at
the intersection. Both the continuation of Highway 177 and the
Powerhouse Road are 20 feet in width and have an asphalt surface.
Neither has a marked center line. The intersection is located
within the federal reservation and is maintained by the United
States Government. The intersection is approximately 30 feet
wide, and there were no obstructions to interfere with the vision
of the drivers.
The continuation of Highway 177 is a heavily traveled route. It
is the only major access road to the dam area and the adjacent
boat docks and recreational facilities. By comparison, the
Powerhouse Road is only 700 feet long and is used primarily by
the employees at the powerhouse. Just prior to the intersection
with the Powerhouse Road the continuation of Highway 177 ...