Fotopulos

I dissent. The court’s opinion accepts as persuasive evidence of an admission of fault that Bailey said, “Well, my brakes didn’t hold,” or “I couldn’t help it.”

1 dissent from establishing in the law of evidence for this circuit the probative value of such an “either-or” alternative. It is elementary that the adjudicating body cannot treat either alternative as proved.

However, even if both statements are proved, each is consistent with Bailey’s statement that the Fotopulos car turned to its left across the army car. In such a *641 situation one’s brakes well could not “hold” efficiently for the quick stop required of Bailey’s car and also because of the fault of the crossing car he “could not help” colliding with it.

In the absence of any admission of fault on Bailey’s part, all the remaining evidence is consistent with the conclusion that Fotopulos’ car contributed negligently to the collision.

The judgment should be reversed.

On December 23, 1946, Peter Fotopulos, —to toe referred to as the deceased, — was 49 3rears old. He was the husband of Diamond Fotopulos, and the father of Thomas F. Fotopulos, aged 10 years, and Joan Fotopulos, aged 9 years, who appear here and in the court Ibelow through their guardian ad litem, Diamond Fotopulos.

On that day, the deceased was driving a light Dodge truck north on Van Ness Av *633 enue, in the City and County of San Francisco, California. As he approached the intersection of Van Ness Avenue and Bush Street, he was in the inner, -or westerly lane of traffic and next to and parallel to the street car tracks and safety lane. He was following -another vehicle, which was not identified in the record. There are controlled signal li-ghts at the intersection regulating the traffic. California Motor Vehicle -Code, Sec. 47-6. At the time of the accident, the red 'light was against north and south on Van Ness Avenue, and all traffic had stopped. It was nine-thirty in the morning, and the streets were dry.

After the deceased stopped behind a truck, -which preceded him, an army truck belonging to the Fort Mas-on Post Motor Pool, United States Army, which was then an agency…

180 F.2d 631 UNITED STATES, v. FOTOPULOS et al. No. 12066. United States Court of Appeals Ninth Circuit. March 7, 1950. 1 Frank J. Hennessy, U.S. Atty., Rudolph Scholz, Asst. U.S. Atty., San Francisco, Cal., for appellant. 2 Carroll S. Bucher, San Francisco, Cal., for appellee. 3 Before DENMAN, Chief Circuit Judge, ORR, Circuit Judge, and YANKWICH, District Judge. 4 YANKWICH, District Judge. 5 On December 23, 1946, Peter Fotopulos,- to be referred to as the deceased,- was 49 years old. He was the husband of Diamond Fotopulos, and the father of Thomas F. Fotopulos, aged 10 years, and Joan Fotopulos, aged 9 years, who appear here and in the court below through their guardian ad litem, Diamond Fotopulos. 6 On that day, the deceased was driving a light Dodge truck north on Van Ness Avenue, in the City and County of San Francisco, California. he approached the intersection of Van Ness Avenue and Bush Street, he was in the inner, or westerly lane of traffic and next to and parallel to the street car tracks and safety lane. He was following another vehicle, which was not identified in the record. There are controlled signal lights at the intersection regulating the traffic. California…