David Irish, a Minor, by and Through His Guardian Ad Litem, Clifford L. Irish, and Clifford L. Irish v. United States

The question presented on this appeal is whether the trial court erred in entering judgment for the. defendant in an action for damages against the United States of America under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346 (b), 2671-2680.

We are of the view that the case should be remanded to the district court for the purpose of enlarging and clarifying the findings of fact in the light of the California law of negligence as we understand it to be. If this cannot be done, then the judgment should stand reversed and a new trial granted to the plaintiffs.

Evidence at the trial showed that on March 22, 1952, David Irish, aged three years and eight months, and his sister, Eileen, aged five, were playing on Triplett Way in Marysville, California. At around noon, the United States mailman, Lyle James Smith, drove his mail truck along Triplett Way, a curving, paved, dead-end street in a new residential subdivision near the edge of town. He was twenty years of age and had been employed in his occupation for less than six months. As was his practice, Smith drove on the left-hand-side of the street, stopping at the property line between two houses and making a delivery to each house…

(concurring).

It seems to me that the probability here is that the trial judge did not think he could rely on the testimony of Donald Hubbard. I cannot agree to an outright reversal of the case. I might be inclined to affirm the judgment as rendered if I had support from my colleagues. Under the circumstances, believing that Judge WIIG’S solution is a reasonable one, I concur with him. Apparently all three of us have the same view of the California rules of negligence affecting this case.

(dissenting).

I would reverse the judgment on the ground that the trial court’s finding of no negligence is contrary to the evidence and is thus clearly erroneous. This disposition of the appeal would necessitate a remand for the purpose only of determining the amount of appellant’s damages, a determination that can readily and promptly be made on the basis of the existing record.

The holding of my associates is that if the trial judge believed the testimony of the only eyewitness, Donald Hubbard, then his finding of no negligence would be clearly erroneous. I experience no difficulty in agreeing with that holding, but I do have trouble with the “iffy” qualification it embodies. To me the record affords no ground for believing that the judge discredited Donald’s account of the occurrence. Donald was summoned as a witness by the United States, was interrogated by its counsel, and testified on its behalf. In effect, the government vouched for him. In its brief on this appeal the government relies entirely on Donald’s testimony as supporting its claim that the finding of no negligence was correct and should be allowed to *9 stand. Itfi brief summarizes Donald’s testimony, with…

225 F.2d 3 David IRISH, a minor, by and through his Guardian Ad Litem, Clifford L. Irish, and Clifford L. Irish, Appellants, v. UNITED STATES of America, Appellee. No. 14124. United States Court of Appeals Ninth Circuit. July 1, 1955. 1 J. Adrian Palmquist, Robert H. Kroniger, Oakland, Cal., Francis T. Cornish, Berkeley, Cal., for appellant. 2 Lloyd H. Burke, U. S. Atty., San Francisco, Cal., William H. Lally, Robert E. Woodward, Sacramento, Cal., for appellee. 3 Before HEALY and CHAMBERS, Circuit Judges, and WIIG, District Judge. 4 WIIG, District Judge. 5 The question presented on this appeal is whether the trial court erred in entering judgment for the defendant in an action for damages against the United States of America under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346 (b), 2671-2680. 6 We are of the view that the case should be remanded to the district court for the purpose of enlarging and clarifying the findings of fact in the light of the California law of negligence as we understand it to be. If this cannot be done, then the judgment should stand reversed and a new trial granted to the plaintiffs. 7 Evidence at the trial showed that on March 22, 1952,…