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CONFERRING JURISDICTION UPON THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY TO HEAR, DETERMINE, AND RENDER JUDGMENT UPON THE CLAIMS OF MAT HENSLEY, ARNOLD BLANTON, LILLIE PRICE, CLYDE THORPE, AND D. L. MASON

JULY 14, 1939.-Committed to the Committee of the Whole House and ordered to be printed

Mr. THOMAS of New Jersey, from the Committee on Claims, submitted the following

REPORT

[To accompany H. R. 5211]

The Committee on Claims, to whom was referred the bill (H. R. 5211) for the relief of D. L. Mason, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass.

The amendments are as follows:

Strike out all the wording of the bill after the enacting clause, and insert in lieu thereof the following:

That jurisdiction is hereby conferred upon the United States District Court for the Eastern District of Kentucky to hear, determine, and render judgment, as if the United States were sueable in tort, upon the claims of Mat Hensley, Arnold Blanton, Lillie Price, and Clyde Thorpe, all of Wallins Creek, Harland County, Kentucky, for damages resulting from personal injuries and property damage; and upon the claim of D. L. Mason, of Wallins Creek, Harlan County, Kentucky, for damages resulting from the death of his minor daughter, Dorothy Mason; said injuries, death, and property damage having been received when the taxicab in which they were passengers was in a collision with a Civilian Conservation Corps truck on the highway between Lake View and Harlan, Harlan County, Kentucky, on September 14, 1935: Provided, That the judgment, if any, shall not exceed, in the case of Mat Hensley, $1,500; in the case of Arnold Blanton, $1,000; in the case of Lillie Price, $3,500; in the case of Clyde Thorpe, $1,500; and in the case of D. L. Mason, $5,000.

1

SEC. 2. Suit upon such claims may be instituted at any time within one year after the enactment of this Act, notwithstanding the lapse of time or any statute of limitations. Proceedings for the determination of such claims, appeals therefrom, and payment of any judgments thereon shall be in the same manner as in the cases over which such court has jurisdiction under paragraph 20 of section 24 of the Judicial Code, as amended.

Amend the title of the bill so as to read:

A bill conferring jurisdiction upon the United States District Court for the Eastern District of Kentucky to hear, determine, and render judgment upon the claims of Mat Hensley, Arnold Blanton, Lillie Price, Clyde Thorpe, and D. L. Mason.

The bill, as amended, is the same as a bill reported by this committee in the Seventy-fifth Congress, and the report which accompanied said bill (No. 958, 75th Cong., 1st sess.) is appended hereto, inasmuch as the facts are described therein.

[H. Rept. No. 958, 75th Cong., 1st sess.]

STATEMENT OF FACTS

Under the terms of this proposed legislation, as amended, the United States District Court for the Eastern District of Kentucky is given jurisdiction to hear, determine, and render judgment, as if the United States were suable in tort, upon the claims of Mat Hensley, Arnold Blanton, Lillie Price, and Clyde Thorpe, all of Wallins Creek, Harlan County, Ky., for damages resulting from personal injuries and property damage; and upon the claim of D. L. Mason, of Wallins Creek, Harlan County, Ky., for damages resulting from the death of his minor daughter, Dorothy Mason; said injuries, death, and property damage having been received when the taxicab in which they were passengers was in a collision with a Civilian Conservation Corps truck on the highway between Lake View and Harlan, Harlan County, Ky., on September 14, 1935.

These claims, originally embodied in H. R. 1122, H. R. 1123, H. R. 1124, H. R. 1125, and H. R. 1147, Seventy-fifth Congress, have been under consideration by your committee since the early part of this session. As each of them arises from the same set of facts and circumstances, they are here consolidated to eliminate unnecessary expense and effort. The War Department has reported on them as a group also.

It appears that claimant, Mat Hensley, was engaged in the business of operating a taxicab for passengers between Lake View and Harlan, Ky.; that on September 14, 1935, he was traveling over Highway No. 119, between these points and toward Harlan, with four men, five women, and one girl as passengers; that his cab was therefore overloaded in violation of State law; that it was night, and was raining at the time of the accident, which occurred when a Civilian Conservation Corps truck, carrying 19 enrollees, approached from the opposite direction and collided with the taxicab; that both vehicles were being operated at approximately 25 miles per hour; that the highway at the point of collision consisted of 16 feet of concrete, with shoulders of 3 or 4 feet on each side; that the accident occurred as the taxicab was completing a right curve, and the truck was slightly around such curve; and that the highway is flanked on the left, the truck's side, by mountainous country, and on the right, the cab's side, by an embankment which descends to the Cumberland River.

The War Department opposes the bill for the reasons that the driver of the cab did not cut it over to his right to avoid the accident in time, and because the esb was overloaded. There is considerable evidence to refute any negligence on the part of Mat Hensley and place the responsibility on the Civilian Conservation Corps driver. It must be admitted that violation of a law is not of itself evidence

In this

of negligence, unless such violation resulted in the injury complained of. case, your committee feels that it is just one of the elements to be taken into consideration in arriving at a determination of the liability.

Statements presented by and on behalf of the claimants allege that the Government truck was proceeding along the highway about 2 feet on the wrong side thereof; that the taxi was well on its proper side of the highway, and was even driven off the concrete onto the dirt shoulder in an effort to avoid this collision; that the truck traveled some 150 yards after striking the cab at a point about the left front door and practically demolishing it; that the Civilian Conservation Corps driver admitted responsibility for the accident at the scene thereof, and later when he was in the custody of police; and lastly, but most important in our opinion, that the truck bore no lights outlining the body thereof as required by the laws of the State of Kentucky. There appears to be no question of this last, and all of the occupants of the cab testify that they could not tell whether an ordinary automobile or a truck approached them in the absence of any lights other than the regular headlights. Consequently, there is a violation of the law also attributable to the Government, and certainly, if these statements be the truth, there is a responsibility on the Government.

Believing that tort claims against the United States are properly determinable by the Congress, your committee has hesitated to pass jurisdictional bills except in a relatively small number of cases where various elements and conflicting statements of liability have made them such as were impossible of determination here. These claims clearly fall within that category and the bill has been amended accordingly to confer jurisdiction upon the district court which would have heard the case had the United States been amenable to suit. We firmly feel, after an exhaustive investigation, that claimants are entitled to that right.

All of the claimants sustained personal injuries, Dorothy Mason, the 15-year old daughter of D. L. Mason, died shortly after the accident, and the taxicab owned by Mat Hensley was completely demolished. To prevent claimants from recovering judgments of an unusual amount, if any, contrary to those awarded by the Congress in similar cases, it has been customary to limit, not fix, the judgments that might be obtained as a result of a jurisdictional tort bill. The same procedure has here been followed, and in setting the limitations, your committee has taken into consideration the injuries and losses sustained by claimants, and described in the statements hereafter appended. The amounts represent the highest which we feel the Congress would have awarded them were we in a position to definitely decide the Government's liability here.

With the amendments, the bill creates nothing prejudicial against the United States, and after careful consideration, its passage is recommended by your committee. Appended hereto is the report of the War Department, and all the material statements.

Hon. AMBROSE J. KENNEDY,

War DepartmENT, Washington, March 31, 1936.

Chairman, Committee on Claims, House of Representatives.

Dear Mr. KENNEDY: Careful consideration has been given to the following bills: H. R. 11758. For the relief of D. L. Mason; H. R. 11759. For the relief of Arnold Blanton; H. R. 11760. For the relief of Mat Hensley; H. R. 11761. For the relief of Clyde Thorpe; H. R. 11762. For the relief of Lillie Price; which you transmitted to the War Department under date of March 18, 1936, with request for information and the views of the Department relative thereto. This report covers all of the above pieces of legislation as requested, inasmuch as the claims arise from the same accident.

The purpose of the proposed legislation is to pay D. L. Mason the sum of $10,000 in full settlement of all claims against the United States on account of the death of his daughter, Dorothy Mason, Arnold Blanton the sum of $2,500, Mat Hensley the sum of $2,500, Clyde Thorpe the sum of $2,500, and Lillie Price the sum of $5,000, in full settlement of all claims against the United States arising

out of personal injuries incurred in an automobile accident involving a Civilian Conservation Corps truck, in Harlan County, Ky., on September 13, 1935.

On September 14, 1935, a Government truck, operated in connection with the Civilian Conservation Corps, transporting 19 enrollees on Highway No. 119 from Harlan, Ky., to the Civilian Conservation Corps camp at Lava, Ky., and proceeding at a rate of speed of about 25 miles per hour, was struck by a civilian taxi operated by Mat Hensley. This accident was investigated and the report of investigation shows that the Government truck was approaching an unbanked left curve; that the highway was marked with a black center line; that the Government truck was well to the right of this center line; that the governor on the Government truck was set to limit the speed to 29 miles per hour; that a fivepassenger 1934 master Chevrolet sedan, owned and operated as a taxi by Mat Hensley, with four men, five women, and one girl as passengers, among whom were the claimants in question, was proceeding in the opposite direction on the same highway at approximately 25 miles per hour; that the taxi, in rounding the curve (right for the taxi), proceeded over the center line of the highway and collided with the body of the approaching truck, back of the cab, resulting in the personal injuries complained of; and that the State laws of Kentucky prohibit the overloading of a taxi beyond 25 percent of its rated capacity.

The evidence also shows that Dorothy Mason died an hour after arriving at the hospital in Harlan, that Lilly Price was seriously injured, that Clyde Thorpe received serious lacerations to his hand and knee, that Arnold Blanton received lacerations to left hand, and that Mat Hensley received minor bruises and shock. While this tragic accident is regretted by the War Department, all of the facts in the case seem to establish that the accident was due solely to the negligence of the driver of the taxi in that he overloaded his five-passenger car with 10 passengers, and in proceeding around a right curve did not cut his car over to his side of the road quickly enough to avoid the accident. In view of the circumstances it is recommended that favorable consideration be not given to the proposed legislation.

Sincerely yours,

GEO. H. DERN, Secretary of War.

STATEMENT OF MAX HENSLEY

The affiant, Mat Hensley, being duly sworn, says and states the facts in this case to be as follows, to wit:

On the 13th day of September 1935 he was and had been for some time prior thereto engaged in the taxi business and was the owner of one certain automobile which he was using as a taxicab in his business. After dark on the said day and date he left Lake View in Harlan County, State of Kentucky, with a load of pasengers in this taxicab destined for the city of Harlan in Harlan County, State of Kentucky. The passengers being hauled by the affiant in his taxicab at this time were Clyde Thorp, Vernon Howard, Frank Davis, Lillie Price, Eula Blanton, Cloe Cox, Della May Cornett, Arnold Blanton, Dorothy Mason, and Lucy May Mason, all of whom had paid the customary and usual fare for such services and all of whom were quict, orderly, and sober.

As the affiant was driving his taxicab along the State highway in Harlan County, State of Kentucky, and transporting his passengers from Lake View to the city of Harlan, a truck being operated and driven by H. L. Raines who was in the services of the United States Government was negligently, recklessly, and carelessly driven into and against and collided with the taxicab of the affiant.

At the time this collision occurred, the affiant was not drunk and had not drank any whisky or other intoxicating liquor of any kind, but was absolutely sober and alert and using due care for the safety of all persons and vehicles, including the above truck, using or being upon said highway.

The said H. L. Raines was at this time a member of the Civilian Conservation Corps and, as such member, in the employment of the United States Government. The Civilian Conservation Corps is an organization which exists, acts, and functions solely and alone on and under and by virtue of the laws of the United States Government, passed by its Congress, and approved and signed by the President. Under these laws, it operates and functions as a part of the Govern ment and under the direction and control of the President of the United States and the other officers of the Government, and its officers, members, and personnel are officers, agents, servants, and employees of the United States Government. H. L. Raines was at the time and on the occasion of the collision between the truck driven by him and the taxicab driven by the affiant, acting under the orders

and direction of the commanding officer of the Civilian Conservation Corps camp at which he was stationed and the other officers thereat, and was driving said truck as an agent and servant and employee of the United States Government and in the course of his employment at such employment, and as such employee.

The city of Harlan is in an east-northeast direction from Lake View and the highway connecting these places runs in the general direction of east-northeast from Lake View to Harlan. The affiant was driving his taxicab along this highway from Lake View to Harlan and in an east-northeast direction. The said H. L. Raines was driving the Civilian Conservation Corps truck in the opposite direction, that is, from Harlan toward Lake View and in west-southwest direction. The law of the road in this State is that the operator of a motor vehicle shall operate same upon the right side of the highway, and this is especially true when traveling around curves and passing other vehicles. The right side of the highway over which the affiant was traveling and in the direction in which he was traveling was and is the southeast side of same.

Along this side of the highway is the Cumberland River and the highway throughout the major portion of the route being traveled by the affiant runs along and adjacent to the rim or edge of the channel of this river. The edge of the highway is along the edge or rim of the bank of the river and from the edge of the highway it is a steep grade or descent down to the level of the water in the river, the highway being on a level about 20 or 25 feet above the level of the water of the river at low tide. This side is the lower side of the highway and is so called.

The right side of the highway for the said Raines in the direction in which he was traveling was and is the northwest side or the upper side of the highway. Along this side is a mountain, locally called the Pine Mountain, and it is a part of the Cumberland Mountains of the Appalachian system of mountains. The bank on this side of the road is inclined upward and not downward.

In addition to the conditions above described, at the place of the collision, there is a culvert under the highway. The lower or southeast end of this culvert is unprotected in any way and an automobile does not have any protection from the bank of the river or the end of the culvert, there being no posts or embankment whatever. At the end of this culvert there is about a 6-foot straight drop and then an incline on into the river.

Immediately below and at the place of the accident there is a rather stiff curve in the road. This curve is about 250 feet in length and the affiant had driven most of the way around the curve and was near the upper end of it when the truck ran into his taxicab. The affiant at the time the collision took place was and had been for several hundred feet entirely on the right-hand side of the road and over out of the way of the truck, having given much more than half of the road to the truck.

Before the affiant reached the curve and began to go around it, he saw the lights of an automobile coming meeting him. This was the truck which hit him. About the time the affiant had started around the curve he saw the body of the truck, that is, bulk of the automobile. The only lights on the automobile, were the lights which are on all automobiles, whether passenger or truck. They were the two lights on each side of the hood of the engine and near the inside of the front fenders. There was no light or lights to show or indicate that it was a truck or that it had any other body or frame on it than the ordinary passenger automobile.

The truck had a body or frame on it. The frame extended over the sides of the automobile chassis and over the fender for some 6 or more inches on each side. There was no lights or other warning or thing from which this could be determined or observed by the affiant or anyone in his taxicab and he did not know of this condition until he saw the truck after the collision. It was after dark and had been raining and the night was dark and the road slick.

The shoulders on the lower side of the road, which was the edge of the bank of the river, was composed of ordinary soil or dirt and was soft and slippery, owing to the dampness thereof, on the day of the accident. It was unsafe for the affiant to run his taxicab too close to this rim or edge.

At the time the affiant came close enough to the truck to see it or the bulk of it, and while it was about 300 or more feet from him he noticed that the inside light of the approaching automobile, which turned out to be the truck which hit him, was over the center line of the road and the truck was running near the center of the road and approaching him at a rapid rate of speed. When he saw that the approaching automobile was occupying the center of the road, with its inside wheel 2 or more feet over the center line of the road, he was already over on his side of the road, but in order to make as sure as the circumstances would permit him he cut his taxicab still farther to the right and to such an extent that his two

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