decided.: June 28, 1949.
Before MARIS, GOODRICH and KALODNER, Circuit Judges.
GOODRICH, Circuit Judge.
This is a wrongful death action brought by the plaintiff, a citizen of New York, against the defendant, a citizen of New Jersey, who is alleged to have been the driver of the automobile in which plaintiff's decedent was a passenger at the time of the accident which caused his death. The sole issue presented by this appeal concerns the identity of the driver of the car at the time of the accident. At the close of the defendant's case, the Trial Judge granted defendant's motion for a directed verdict on the ground that the plaintiff had failed to produce evidence which would have entitled the jury to find that defendant was driving the car when the collision occurred. Plaintiff appeals.
The automobile in which the plaintiff's decedent was a passenger ran into the rear of a tractor-trailer truck traveling in the same direction on an open highway in Virginia.*fn1 Immediately following the collision, the driver of the truck walked back to the automobile. He testified that he found the defendant on the left front seat of the car, his body partially outside the left front door. He testified also that he found Mrs. Fleming, the owner of the car, on the right front seat with her body partially outside the right front door and her foot caught under the heater on the right hand side of the car. The steering wheel of the car was bent.Defendant sustained several fractured ribs and other injuries to his right side above the waist. Mrs. Fleming died as a result of her injuries.
These facts are not disputed. It is also established by defendant's own testimony that he was driving the car until shortly before the accident. At the trial he testified that he was not driving the car at the time of the accident, but that he had turned the wheel over to Mrs. Fleming some time before the collision, and had himself fallen asleep on the right front seat.*fn2 The basis of the Trial Court's ruling was that the position of the defendant on the left front seat following the collision created a "legal presumption" which was, as a matter of law, overcome by the direct testimony of the defendant that he was not driving.*fn3 In this the learned District Judge was clearly wrong.*fn4
The defendant's testimony was evidence which if believed might convince the jury that he was not the driver of the car. The position of defendant in the driver's seat following the accident and also that of the owner, Mrs. Fleming, constituted evidence from which the jury might have inferred that defendant was the driver of the car when the crash occurred. The nature and location of his injuries in connection with the bent steering wheel and his testimony as to his position in the car were proper matters for the jury to consider in determining where the defendant was at the time of the collision.The credibility of the defendant as a witness was also a matter for the jury. In short, the evidence on the identity of the driver was in conflict, and the issue was one of fact to be decided by the trier of fact.*fn5 The Trial Judge should not have withdrawn it from the consideration of the jury. Neither he nor we can say that, as a matter of law, the testimony of the defendant is to be accepted and the inference to be drawn from the circumstantial evidence rejected.
The judgment of the District Court will be reversed and the case remanded for proceedings not inconsistent with this opinion.