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DEMPSEY v. UNITED STATES

August 31, 1959

C.O. DEMPSEY, PLAINTIFF,
v.
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 proper control.

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.

Findings of Fact

1.

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.

2.

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 powerhouse.

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.

3.

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 hour.

Farison observed the Dempsey car traveling along the continuation of State Highway 177 when he was 100 feet from the intersection, and he slackened the speed of his car. Neither driver made any signal. As both cars neared the intersection, Farison thought that the Dempsey car was going to proceed straight ahead and enter the Powerhouse Road rather than follow the continuation of State Highway 177 which veers to the left or to the northeast. Young Dempsey thought that Farison was going to stop. Both were mistaken. The Dempsey vehicle was already into the intersection following the continuation of State Highway 177 to the left when Farison entered. Just before the collision the plaintiff told his son: "Look out. He is going to hit us." Don Dempsey swerved to the left just prior to the impact. Farison continued his regular course.

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 was dry.

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.

4.

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 ...


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