After the second of two mistrials from an inability of each of the juries to arrive at a verdict, the District Court granted the Bus Company's motion j.n. o.v., Fed.Rules Civ.Proc., 50(b), 28 U.S. C.A., and thus denied the claim for the death of Deitz, Sr., occasioned when his Buick sedan, coming across the heavily traveled east-west arterial Highway U. S. 90 from an adjacent filling station, was hit broadside by a westbound Bus as it sought to avert collision. The Judge, without opinion but by brief minute entry, assuming, at least arguendo, negligence on the part of the Bus, held that the decedent was guilty of contributory negligence as a matter of law which, under Louisiana law, defeats recovery altogether. Complaining of this action, the Dietzs insist that at worst this was a jury issue and that the Court also erred in refusing to give requested charges submitting the doctrine of Last Clear Chance.

While it is not for us, in assaying the underlying question of the correctness of granting the motion j.n.o.v. to pass upon the credibility of witnesses or weigh evidence permitting conflicting or variable inferences, Gunning v. Cooley, 281 U.S. 90, 50 S. Ct. 231, 74 L. Ed. 720; DeZon v. American President Lines, Ltd., 9 Cir., 129 F.2d 404; Boston & Maine R. R. v. Cabana, 1 Cir., 148 F.2d 150, certiorari denied 325 U.S. 873, 65 S. Ct. 1414, 89 L. Ed. 1991; Roth v. Swanson, 8 Cir., 145 F.2d 262, 265; Moore's Federal Practice, 2d Edition, Vol. 5 at 2314-2315, the very fine bead which the plaintiff must draw to succeed on the evidence of this record is brought into sharp focus by a consideration of the evidence brought forward by the Bus Company, plus those inferences arising from other evidence claimed by it to be conclusively favorable. This is especially so since Deitz, Sr., the driver and sole occupant of the Buick Sedan, was killed almost instantly.

The accident occurred where U.S. 90 runs in an east-west direction through a small group of buildings scattered along the highway a few miles west of Boutte. The highway is a black-topped, concrete slab 24 feet wide and with no painted center stripe. All of the buildings are well back from the highway itself, and the view of the highway to the east of Third Street is unobstructed for at least a mile. The collision took place about opposite Griffin's filling station garage.

In the general area of the collision, there was, on the north side of the highway the Roundhouse Cafe and Griffin's Filling Station Garage. Griffin's Filling Station fronted on the highway. An island of three gasoline pumps was situated 52 feet back from the north edge of the paved slab and about 30 feet to the east of the boundary of a small, shelled road called Third Street making a T intersection with U.S. 90 and 83 feet west of the entrance to the Roundhouse Cafe. The area between the slab and these buildings was shelled with no perceptible shoulder to the highway or line dividing Griffin's "apron" from the adjacent Third Street. The impact occurred about in front of Griffin's place. When the vehicles came to a stop, the Buick, lying substantially north-south, angled slightly eastward, was completely off the slab and on the shoulder on the south side of the highway at a point about 16 feet west of an imaginary extension of the west side of the little, shelled Third Street. The Buick, with its left middle deeply smashed in, was wrapped around the left-center-front end of the Bus. The Bus, also completely off the highway, angled slightly southwest with its right rear dual wheels a foot or so off the slab.

Just before the collision, which took place about 4:30 p.m., Deitz had had some light food (but no alcoholic drinks) in the Roundhouse Cafe. Apparently he got into his Buick and, intending to return to his motel located, it was later learned, a few miles to the east, he proceeded in a westerly direction on the shell apron in front of Griffin's gasoline pumps. Sticking 6 to 10 feet out from the pumps was an air signal hose which rang a bell as the Buick passed over it. Griffin, nearby and occupied in doing some painting, momentarily looked up, saw the Buick passing in front of the pumps and headed diagonally to the south and west. The Buick was then 12 to 15 feet from the black top highway and in the general area where the shell apron and Third Street ran together. As the Buick reached this spot, Griffin resumed mixing paint and shortly (he did not fix the time) he, "heard the air brakes and then bang. Almost that fast. From the time I heard the air brakes I heard the crash." As Griffin judged it, the speed of the Buick was not over 12 to 14 mph. From this the jury could have concluded that Deitz drove from the Cafe approximately 130 feet to the west with his car angling toward the south-southwest as he came close to the black top slab.1

This was the case as the plaintiffs made it. As made, there was no evidence that Deitz stopped his car, had looked, or had taken any steps to ascertain whether it was safe to enter, let alone, cross the arterial highway. Nor was there anything except the accident and pictures of the wreckage from which to draw any inferences as to the speed or the actions of the Bus either before or as the situation was developing.

In the final analysis, the plaintiffs undertake to make their case out of the testimony of the Bus driver, relying in large part upon inconsistencies and contradictions that appear as he related it from time to time — not as merely showing lack of credibility, but as indicating affirmatively an explanation for the accident which would cast, not exonerate, the Bus Company.

On the trial the story2 was essentially that, seeing the Buick suddenly come out into the highway when the Bus was 125 feet away and proceeding about 45 to 50 mph, the Bus driver reacted promptly to the danger, blew his air horn, put on the air brakes, and pulled toward the left, but before he could stop, the Bus, when a few feet to the left of the center of the highway, hit the Buick broadside pushing it 40 to 50 feet, in effect, over to the final place of rest on the south shoulder. This was different in at least one respect from his written statement3 given to the Highway Police in which he asserted that the blowing of the air horn was a precautionary move prior to the Buick's cutting across into the road. It also corroborated the plaintiff's theory that the vehicles moved 25, not 40 or 50 feet, after the impact. But despite these differences, the fact of the Buick suddenly coming out into and across the highway in the path of a large Bus operating at high, but legal, speed runs throughout as a common thread, with corroboration by some six passengers4 having the status of disinterested witnesses whose testimony cannot be disregarded, Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 51 S. Ct. 453, 75 L. Ed. 983; Quock Ting v. United States, 140 U.S. 417, 11 S. Ct. 733, 35 L. Ed. 501; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S. Ct. 391, 77 L. Ed. 819; Foran v. Commissioner, 5 Cir., 165 F.2d 705; Reed v. Murphy, 5 Cir., 232 F.2d 668; Ross v. Commissioner, 5 Cir., 227 F.2d 265; Goldberg v. Commissioner, 5 Cir., 223 F.2d 709, unless it has to give way in the face of overpowering physical facts, or other evidence which simply makes it incredible or inherently improbable, cf. Geigy Chemical Corporation v. Allen, 5 Cir., 224 F.2d 110, quoting from, in footnote 5 at page 114; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747, 749; Boyett v. Commissioner, 5 Cir., 204 F.2d 205; Griffin v. Kelley, 5 Cir., 227 F.2d 258; Archer v. Commissioner, 5 Cir., 227 F.2d 270; Carmack v. Commissioner, 5 Cir., 183 F.2d 1, certiorari denied, 340 U.S. 875, 71 S. Ct. 121, 95 L. Ed. 636.

On this version, reasonable minds could only conclude that Deitz disregarded altogether the Louisiana statutory and judicial rules requiring that a driver entering a heavily traveled, main, "preferential" or "favored" highway ascertain, by stopping, looking and all other suitable means, that the entrance, in the light of existing and visible traffic conditions, may be made in reasonable safety.5 He is charged with having seen what was so plainly open to him on this long, unobstructed stretch of roadway,6 and the Bus driver, legally operating the Bus on the highway, was entitled to assume that the Buick would comply with this vital rule of care.7

This brings us then to the crux of the case: does an asserted prior inconsistent statement of the Bus driver, or certain physical facts demonstrated by photographs, either alone or together, present contrary "facts" which the jury could credit, and, on the basis of the "old" or "new" facts permit inferences that the Bus violated some duty which, rather than Deitz's negligence, caused his death?

The plaintiffs insist that the Bus driver's remarks8 made in the course of a conversation with the Louisiana Highway Patrolman immediately after the accident were res gestae and showed, or permitted the jury to conclude, that the But got far over into its left lane, not out of an emergency reaction to the Buick suddenly coming out into the highway (as claimed in trial testimony), but rather as a more or less normal maneuver to pass or overtake it under the mistaken assumption that the Buick was entering the highway with the purpose of turning to its right to proceed west.

With great ingenuity this is then woven into the fabric of a brilliant argument based on claimed physical facts,9 the essence of which is that the accident occurred, not as the Bus driver contends to the left of center of the highway some 40 or 50 feet from the point of final resting, but clear over on the left shoulder and at a point exactly 24 feet from the place of rest. Since the Bus driver admits, and the facts compel it anyway, that the Bus could not have gotten where it finally ended if the Bus, while 3 feet left of center, hit the Buick 40 to 50 feet off, the plaintiffs urge that with the impact in fact occurring on the shoulder, it establishes at least two things: first, that the Bus, whose front wheels were in virtually a straight ahead position, had to have been considerably beyond 125 feet from the point of impact when, first sighting the Buick, the Bus swung to the left; and, second, since the Buick had gotten clear over to the south shoulder, it proved that there was ample time and distance for the Buick to have entered the highway. These, the plaintiffs then argue, add up to permit a jury to determine whether Deitz was contributorily negligent and whether the Bus was guilty of some negligence in pulling left into the Buick's lane.

Indulging, as we must, every favorable, helpful inference which fair-minded men could reasonably draw, we conclude that on none of these hypotheses was there a case for the jury.

Assuming that the position of the Bus permits an inference that the swing to the left commenced beyond the 125-foot distance fixed by the driver, there is nothing in these physical facts or other testimony to allow that inference to be applied to a point beyond an extension of the Bus's apparent course. Applied most favorably, and reconstructing the scene as the plaintiffs would have us do, this puts the Bus in its own right-hand lane within 230 feet of the point of impact. What then are the consequences? Can we say that reasonable minds could agree that a 17-foot sedan can come into and across a main thoroughfare right in the path of an oncoming 13-ton bus, then scarcely two-thirds of a city block away, rapidly approaching at a lawful speed of nearly 73 feet per second? The vehicles are but three seconds apart in point of time, and the distance10 required to stop is even greater. The fact that Deitz nearly "made" it, or might have had not the Bus pulled left does not change this for the rule of prudence is not tested by the providential fortune of the careless or foolhardy.

With the oncoming Bus in full view, it was, we consider, contributory negligence as a matter of law for Deitz to put himself in that position. And this counterbalances any negligence which, arguendo, we may assume on the part of the Bus in misjudging the intended course of the Buick.

The case then, almost with the rapidity with which death was closing in on Mr. Deitz, suddenly narrows itself into the specific inquiry of what the Bus at that stage could or ought to have done. Certainly, from the evidence offered, there was nothing about the appearance of the Buick as it first came out toward or onto the black top highway to compel the Bus driver to conclude at that instant that the Buick intended to go clear across and swing east in the south lane. At best, the jury could not find that the Bus driver would know this until the front end of the Buick reached near the center of the highway. Considering the Buick's speed (Griffin estimated it at 12 to 14 mph), this would take nearly one second, during which time the Bus would have come nearly 73 feet closer. Assuming that, despite woeful neglect by Deitz, the Bus driver's actions must yet be retrospectively tested11 as though he had ample time to reflect and act, what could have been done? At this stage, a 17-foot automobile is blocking two-thirds of the highway not over 150 feet away. In the undisputed reaction time of three-quarters of a second, the Bus would run another 49½ to 55 feet, leaving scarcely 90 to 100 feet between them when the brakes could be applied. There is no showing of any evidence that at its speed, in this situation, the Bus could then have stopped, or, in that fleeting moment, it could or ought to have pulled to the right instead of the left. For it to have been a Last Clear Chance in law, the plaintiff must prove it to have been one in fact12 with a means actually open to the Bus which, consistent with the equally dominant necessity of safety to its own passengers, prudence required it to take.

Indeed, if there were a last clear chance, or chances, it was for Deitz who, upon first entering on the slab, again after traversing part of it, could have seen the Bus charging down on him either in its right lane (as claimed by it) or in the left lane as contended by the plaintiffs. At each stage, with his slow speed, Deitz could have stopped quickly or, with the burst of speed and power the plaintiffs insist the Buick had, he could have swung around to the right by utilizing the broad, flat shoulder area to the west and south of the highway. At that stage responsibility shifted to Deitz for Louisiana holds a person to what he could have seen and what he could have done had he seen.13

Affirmed.