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BILLINGSLEY v. WESTRAC COMPANY

October 15, 1965

JUANITA DESHAZO BILLINGSLEY, ADMINISTRATRIX OF THE ESTATE OF JOE W. BILLINGSLEY, DECEASED, PLAINTIFF,
v.
WESTRAC COMPANY AND DONALD EARL ADAMS, DEFENDANTS.



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

  In this action commenced April 9, 1965, plaintiff seeks to recover damages for the alleged wrongful death of Joe W. Billingsley growing out of a collision. Plaintiff, Juanita DeShazo Billingsley, is the widow and duly appointed Administratrix of the Estate of Joe W. Billingsley, deceased, and is a resident of Sevier County and a citizen of Arkansas. The defendant Westrac Company is a Pennsylvania corporation with its principal place of business in California. The individual defendant, Donald Earl Adams, an employee of Westrac, is a citizen of the State of Washington. Jurisdiction exists by reason of diversity of citizenship of the parties and the amount involved, 28 U.S.C.A. § 1332(a), (1964 Supp.).

The collision between the tractor-trailer of Westrac, driven by Donald Earl Adams, and the Chevrolet El Camino driven by Joe W. Billingsley occurred approximately 12 1/2 miles west of Benton, Arkansas, on Highway 70 at approximately 5:30 a.m. on March 3, 1965. At the place of impact the highway runs in a generally east-west direction. The deceased was traveling west toward Hot Springs, Arkansas. The tractor-trailer, which had been traveling west, was across the highway in a generally north-south position. The tractor was partially in a driveway on the north side of the highway and the trailer was completely across the highway blocking it.

The plaintiff alleged that the defendant Westrac, acting through its servant and employee, and Donald Earl Adams personally were negligent, as follows:

  1. Driving and operating the tractor-truck-trailer
  unit across the highway, blocking and obstructing
  traffic upon the highway.
  2. Failing to keep a proper lookout for other
  vehicles on the highway.
  3. Failing to use due care and caution in the
  operation of the vehicle and failing to abide by the
  traffic laws, rules and regulations governing the use
  of highways by drivers of motor vehicles.
  4. Failing to yield the right of way to the pickup
  truck being properly operated by Joe W. Billingsley
  in his proper lane of said highway.

She denied that the deceased was guilty of any negligence, and further alleged that as a proximate and direct result of the alleged negligent acts of the defendants, the deceased received injuries which resulted in his death. Following these allegations, the plaintiff specifically alleged the nature and extent of the damages suffered by the estate and the heirs at law of the deceased.

The defendants in their answer filed May 3, 1965, denied any negligence on their part but admitted that Donald Earl Adams was acting within the scope of his employment at the time of the accident. The defendants further alleged that the negligence of the deceased was the proximate cause of the accident which resulted in his death, and alleged the following specific acts:

  1. That he was operating his vehicle at an excessive
  rate of speed.
  2. That he failed to maintain a proper lookout for
  other vehicles on the highway.
  3. That he failed to keep his vehicle under proper
  control.
  4. That if Billingsley discovered that he was
  entering into a situation of peril in time to have
  avoided the accident by the use of reasonable and
  ordinary care in the management and operation of his
  own vehicle, he negligently failed to exercise such
  care to that end.

The defendants prayed that the complaint of the plaintiff be dismissed or, in the alternative, that should the court find defendants guilty of negligence which was a proximate cause of the accident, that the negligence of the deceased, Joe W. Billingsley, be compared with the negligence of the defendants and that any award be diminished in proportion to ...


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