author: ADAMS, Circuit Judge.

text:
    Mrs. Anna POLLARD, an Individual, Appellant, v. George W. ROMNEY, Individually, and in his capacity as Secretary of Housing and Urban Development, et al.
    No. 74-1336.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 18, 1974.
    Decided Feb. 24, 1975.
    Frank I. Smizik, Neighborhood Legal Services Ass’n, Braddock, Pa., Michael A. Donadee, Neighborhood Legal Services Ass’n, Pittsburgh, Pa., for appellant.
    Carla A. Hills, Asst. Atty. Gen., Richard L. Thornburgh, U. S. Atty., William Kanter, Anthony J. Steinmeyer, Attys., Dept, of Justice, Washington, D. C., for appellees.
    Before ADAMS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

This appeal presents the question whether the federal courts have jurisdiction to review a decision of the Secretary of Housing and Urban Development, fashioned under section 518 of the National Housing Act, denying funds for the repair of a dwelling that is subject to a mortgage guaranteed by HUD.

A.

On November 27, 1970, Anna Pollard purchased a single-family residence in North Braddoek, Pennsylvania. A note, secured by a mortgage on the premises, provided $9,200 of the $12,000 purchase price of that home. The mortgage was insured by HUD under the Existing-Home Program of section 235 of the National Housing Act. As part of the benefits provided by that program Mrs. Pollard received from HUD a monthly subsidy of $43. to assist her in meeting the monthly mortgage installments of $74.15.

Mrs. Pollard claims that she was led to believe that prior to her purchasing the house representatives of HUD had inspected the dwelling and determined that it complied with all applicable health and building codes. However, as related by Mrs. Pollard, shortly after moving into the house in December, 1970, she began noticing latent defects affecting, inter alia, the plumbing, the heating system, the roof, and the electrical wiring. Within “one year after the insurance of the mortgage” by HUD, Mrs. Pollard claims she requested HUD to provide, pursuant to subsection 518(b) of the Housing Act, financial assistance for making the necessary repairs. A month later a HUD inspector, having visited the residence while Mrs. Pollard was not present, apparently left a message which Mrs. Pollard never received.

Mrs. Pollard’s attorney wrote HUD on December 18, 1972, requesting another inspection. Then on January 29, 1973, Mrs. Pollard initiated this action in the district court. She asserted that HUD had failed to inspect the dwelling to determine whether it conformed to local health and housing codes, and had thereby not complied with the requirements of the section 235 Existing Home Program. Mrs. Pollard further alleged that by refusing to repair the defects in her house, HUD violated section 518 of the Act, which provided for repair of defects seriously affecting use and livability, and also transgressed the regulations promulgated by the Secretary under that section. Following commencement of the suit, HUD again visited the Pollard home and this time inspected the alleged defects. HUD then informed counsel for Mrs. Pollard that it believed that lack of proper maintenance had contributed to the defective condition of the residence, but offered financial aid in correcting ten defects. Mrs. Pollard’s counsel responded, requesting financial aid with respect to seventeen additional defects as well. There have apparently been no further attempts to settle amicably the dispute between HUD and Mrs. Pollard.

B.

In the district court Mrs. Pollard sought (1) a declaratory judgment stating that HUD had a duty to ascertain that all housing insured under the section 235 Existing Home Program complied with the local health and housing codes; (2) a writ of mandamus ordering HUD to reimburse Mrs. Pollard for the cost of rehabilitating her house so that it might comply with the standards of the Allegheny County Health Department; (3) as an alternative to the writ of mandamus, damages in the amount necessary to bring her home into conformity with the County’s standards; and (4) such other relief as the court deemed just and equitable.

The Secretary filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. Mrs. Pollard moved for partial summary judgment. The district court granted summary judgment for the Secretary.

C.

On this appeal Mrs. Pollard claims that in denying her compensation for the expense necessary to bring her HUD-insured home into conformity with the local codes HUD violated the regulations the agency itself has issued pursuant to subsection 518(b). Mrs. Pollard further contends that the district court erred in concluding that it had no jurisdiction to review the Secretary’s decision regarding reimbursement authorized by section 518(b).

In her brief, Mrs. Pollard also had argued that the district court erred in concluding that she was not entitled to declaratory, injunctive, mandamus or damage relief because of HUD’s failure, as required by § 235, to inspect her home to determine whether it complied with the local codes. However, in his letter of July 3, 1974, addressed to the Clerk of the Court, Mrs. Pollard’s attorney “request[ed] that this Court limit its review to Appellant’s claim for relief under 12 U.S.C. § 1735b. . . . Thus, as to Appellant Pollard’s claim for relief review will be based on § 1735b, and any claims for relief primarily based on [section 221(d)(2) made applicable by section 235] are hereby withdrawn.” Inasmuch as counsel for Mrs. Pollard has .eliminated all claims for relief based on section 235, we do not have before us the question whether the district court should have granted declaratory judgment under section 235, similar to that afforded in Davis v. Romney.

In response to Mrs. Pollard’s assertion that the district court erred in concluding that it had no jurisdiction to re-evaluate HUD’s denial of her claims for compensation under subsection 518(b), the agency argues that judicial review of decisions pertaining to the disbursement of funds pursuant to section 518 is precluded by subsection 518(c).

D.

In Abbott Laboratories v. Gardner the Supreme Court articulated the precept governing judicial review of administrative actions:

[J]udicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress. . . . [T]he Administrative Procedure Act embodies the basic presumption of judicial review to one . . adversely affected or aggrieved by agency action . . .,” ... so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a).

The Supreme Court explicitly recognized in Abbott Laboratories that, although there is a presumption favoring judicial review, re-evaluation of the agency’s decision is foreclosed where Congress has expressed an intent to preclude it. In Barlow v. Collins the Court stated “Whether agency action is reviewable often poses difficult questions of congressional intent; and the Court must decide if Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.”

Federal agencies should not be able to retreat behind the concept of no judicial review unless Congress has specifically authorized such a ban. However, where Congress has expressly provided that an agency’s action is final and conclusive, the courts of appeals have applied the principle enunciated in Abbott Laboratories and Barlow, and have declared that the federal courts do not have jurisdiction to review a statutory challenge to an administrative decision on the distribution of benefits. For example, federal courts are not available, this Court decided in Hoff master v. Veterans Administration, to hear challenges to determinations by the VA of claims for veterans’ benefits. Congress had stipulated that “the decisions of the [Veterans’] Administrator on any question of law or fact concerning a claim for benefits or payments . . . shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.” In a per curiam opinion the Third Circuit concluded that “[a]ppellant’s claims are directly under the above language” and therefore “[t]he trial judge had no alternative but to deny the motion for an injunction and dismiss the case for lack of jurisdiction.”

E.

In this case then Mrs. Pollard is asking the federal courts to overrule the Secretary’s decision refusing to grant her financial assistance, or benefits, under subsection 518(b). Subsection 518(c) provides in pertinent part:

The Secretary[’s] . . . decisions regarding such expenditures or payments [made under the provisions of this section], and the terms and conditions under which the same are approved or disapproved, shall be final and conclusive and shall not be subject to judicial review.

Mrs. Pollard’s claim for compensation for the cost of repairing her home is clearly a request for “expenditures or payments” under subsection 518(b), as those terms are used in subsection 518(c). Since Congress has declared that the decisions of the Secretary regarding such disbursements “shall be final and conclusive and shall not be subject to judicial review,” the district court properly concluded that it did not have jurisdiction over Mrs. Pollard’s requests for compensation under section 518.

The argument Mrs. Pollard presses on appeal is unlike that presented in Davis v. Romney. There, this Court held that the district court was within its discretion in granting plaintiffs a declaratory judgment stating that HUD had a statutory duty under section 17157 (d)(2) to make reasonable efforts to ascertain that homes securing insured mortgages complied with local codes. Davis, however, unlike the present case, did not involve any statute or provision which specifically limited the jurisdiction of the district court to grant the requested relief.

Mrs. Pollard directs the Court’s attention to the decision of the Northern District of Mississippi in Graham v. Caston. But Graham is not an analogue. There, unlike here, the plaintiffs alleged that the section 235 housing program was being administered in a racially discriminatory manner. The Mississippi court concluded that it had jurisdiction to review at least the “terms and conditions” prescribed by the Secretary pursuant to section 518 and the alleged failure of the Secretary to follow his own regulations. It stated “that there are certain minimal terms and conditions the Secretary must prescribe and to which he must adhere in the administration of this program, and that the adequacy of such minimal terms and conditions is not precluded from judicial review by either the terms of § 1735b or the Administrative Procedure Act.” Since there is no allegation by Mrs. Pollard of racially discriminatory implementation of the section 518 program, or any other violation of constitutional rights, we need not decide whether, under such circumstances, subsection 518(c) would preclude judicial review. On the facts of the case now before us, re-evaluation by this Court of Mrs. Pollard’s request for home-repair funds would be contrary to the plain meaning of the words of the statute. Moreover, none of the cases on which the Mississippi court relied involved statutes specifically stating that the agency action was final and conclusive and not subject to review by the courts.

On the other hand, in Bailey v. Romney, the District Court for the District of Columbia concluded that Congress had intended that the Secretary’s decision on claims for compensation under section 518 be conclusive. The plaintiffs in Bailey v. Romney challenged the legality of the regulations issued by the Secretary to implement the subsection 518(b) reimbursement program. In denying a challenge to its jurisdiction to review the Secretary’s regulations, the district court gave the following interpretation to subsection 518(c):

The statute clearly makes the decision of the Secretary final upon applications for reimbursement under the promulgated regulations . . . .

For the reasons stated above, we conclude that the district court did not have jurisdiction to entertain the claim for reimbursement asserted by Mrs. Pollard. Accordingly, the judgment of the district court will be affirmed.

      . National Housing Act § 235(b), 12 U.S.C. § 1715z(b) (1969 and Supp.1975).

      . Although subsequently amended, at the time Mrs. Pollard filed her claim with HUD, subsection 518(b) of the Housing Act, 12 U.S.C. § 1735b(b), 84 Stat. 1771, provided:
      (b) The Secretary is authorized to make expenditures to correct, or to compensate the owner for, structural or other defects which seriously affect the use and livability of any single-family dwelling which is covered by a mortgage insured under section 1715z of this title and is more than one year old on the date of the issuance of the insurance commitment, if (1) the owner requests assistance from the Secretary not later than one year after the insurance of the mortgage, . . . and (2) the defect is one that existed on the date of the issuance of the insurance commitment and is one that a proper inspection could reasonably be expected to disclose. The Secretary may require from the seller of any such dwelling an agreement to reimburse him for any payments made pursuant to this subsection with respect to such dwelling.
      On August 22, 1974, Congress amended the subsection to provide in pertinent part:
      (b) The Secretary is authorized to make expenditures to correct, or to reimburse the owner for the correction of, structural or other major defects which so seriously affect use and livability as to create a serious danger to the life or safety of inhabitants of any one . . . family dwelling which is covered by a mortgage insured under section 1715z of this title . and which is more than one year old on the date of the issuance of the insurance commitment, if (1) the owner requests assistance from the Secretary not later than one year after the insurance of the mortgage, and (2) the defect is one that existed on the date of the issuance of the insurance commitment and is one that a proper inspection could reasonably be expected to disclose. The Secretary may require from the seller of any such dwelling an agreement to reimburse him for any payments made pursuant to this subsection with respect to such dwelling. Expenditures pursuant to this subsection shall be the obligation of the Special Risk Insurance Fund.
      12 U.S.C. § 1735b(b) (Supp.1975). The amendment is not material here in light of our disposition of this case.

      . The Secretary explained that although Mrs. Pollard was not home when the inspector visited the dwelling, two other persons who were present refused the inspector access to the building. The inspector, according to the Secretary, left a note requesting that Mrs. Pollard contact the HUD office, but Mrs. Pollard states she never received the message.

      . 12 U.S.C. § 1715z(i)(2) (Supp.1975) provides that to be eligible for mortgage insurance a single-family dwelling must conform to the requirements of 12 U.S.C. § 17151(d)(2) (Supp.1975). The latter section stipulates that before mortgage insurance may be obtained the dwelling must comply with all local ordinances and regulations relating to zoning or public health safety. This Court decided in Davis v. Romney, 490 F.2d 1360, 1368, 1369 (1975) that section 17151(d)(2) imposes on HUD, at the very least, an obligation to “make reasonable efforts to ascertain” that homes utilized to secure insured mortgages meet local code standards.

      . Although Mrs. Pollard’s complaint did not specifically request injunctive relief, she has asserted that the district court could properly have granted injunctive relief requiring the Secretary to put her home in compliance with the local codes.

      . 24 C.F.R. §§ 200.517-200.533.

      . In Davis v., Romney, 490 F.2d 1360 (1974), this Court held that the district court properly granted declaratory relief requiring that HUD, in the future, inspect houses for local code violations before insuring mortgages on such houses. The Court, however, decided that neither injunctive nor damage relief could be granted under section 235 to those who had already suffered injury as a result of HUD’s failure to inspect their homes.

      . 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

      . Id. at 140 — 41, 87 S.Ct. at 1511 (emphasis added).

      . 397 U.S. 159, 165, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970).

      . 444 F.2d 192 (3d Cir. 1971).

      . 72 Stat. 1115 amended 38 U.S.C. § 211(a) (Supp.1975).

      . 444 F.2d at 193. See also deRodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240 (1970); cf. Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960).

      . It should be noted that the negotiations between HUD and Mrs. Pollard have been left at an inconclusive stage. If Mrs. Pollard was unable to agree with the director of the local HUD field office on appropriate compensation, review procedures were available within the agency. See HUD Handbook 4515.1, superseding HUD Circular HPMC-FHA 4441.-30B. At oral argument Mrs. Pollard’s counsel conceded that such agency review procedures have not yet been employed here. There was no allegation either in the briefs or at oral argument that such review procedures are no longer available to resolve the disagreement between HUD and Mrs. Pollard regarding the proper amount of compensation.

      . 12 U.S.C. § 1735b(c) (Supp.1975).

      . 490 F.2d 1360 (3d Cir. 1974).

      . In the present case we need not deal with the question whether the district court could have granted a declaratory judgment stating that HUD, in determining whether a particular claimant should be awarded funds for repairing certain defects, is required to follow the guidelines set out in section 518 and the Secretary’s regulations thereunder. Compare Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). Mrs. Pollard did not ask the district court for declaratory relief requiring the Secretary to comply with section 518 and the Secretary’s regulations thereunder. The only declaratory relief prayed for in Mrs. Pollard’s complaint related to HUD’s failure to comply with section 235. Language in the briefs submitted to the Court to the effect that declaratory relief under section 518 should be available to Mrs. Pollard is not sufficient to remedy the absence of such a request in her complaint.

      . Compare also Shannon v. Department of Housing and Urban Development, 436 F.2d 809 (3d Cir. 1970); North City Area-Wide Council v. Romney, 428 F.2d 754 (3d Cir. 1970).

      . No. DC — 73 — 23—K (N.D.Miss. filed May 22, 1974).

      . No. DC — 73 — 23—K at 15-16.

      . Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944); Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973); Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974); Scanwell Laboratories v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970).

      . 359 F.Supp. 596 (D.D.C.1973).

      . Plaintiffs in Bailey contended that the then-existing regulations, which required the Secretary to consider “The extent to which the defects present a clear and present danger to the occupants”, were inconsistent with the statutory direction that reimbursement be made for defects “which ‘seriously affect the use and livability’ ” of the residence. The regulations have subsequently been amended. See 24 C.F.R. §§ 200.517-200.533.

      . 359 F.Supp. at 599 (emphasis added). The court continued, stating “but [the statute] does not deny judicial review of the regulations themselves.” [Footnote omitted] Since we are not presented with a challenge to the Secretary’s regulations, we do not here decide whether the holding on this issue by the District of Columbia court was correct.


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    Mary Ann KLOEWER, Special Administratrix of the Estate of Joseph P. Kloewer, Deceased, Appellee, v. BURLINGTON NORTHERN, INC., a corporation, Appellant, and R. E. Reutzel Co., a corporation.
    No. 74-1399.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1974.
    Decided March 12, 1975.

      Harry B. Otis, Omaha, Neb., for appellant.
    John E. North, Omaha, Neb., for appellee.
    Before LAY, STEPHENSON and WEBSTER, Circuit Judges.
   LAY, Circuit Judge.

This wrongful death diversity case tried under Nebraska law evolved from a fatal accident at a farm railroad crossing in Cass County, Nebraska. The Burlington Northern Railroad appeals an $80,-000 verdict rendered against it. On appeal the railroad urges us to vacate the judgment on three grounds: (1) that the plaintiff’s decedent, Joseph P. Kloewer, was guilty of contributory negligence as a matter of law sufficient to bar recovery under the Nebraska comparative negligence statute; (2) that the decedent was a trespasser or bare licensee to whom the railroad owed only the duty to avoid affirmative harm; and, alternatively, (3) that the trial court erred in instructing the jury that under Nebraska law the railroad had a duty to properly maintain the approaches to the private farm crossing for the benefit of the landowner and anyone, such as the decedent, who was on the landowner’s property with his permission. We affirm the judgment of the district court.

The accident which resulted in the death of the plaintiff’s husband occurred at approximately 11:45 a. m. on September 6, 1972, at a private farm crossing on the Burlington Northern railroad track near Oreapolis, Nebraska. Joseph Kloewer, a foreman for the R. E. Reutzel Construction Company, was driving a 1972 Ford pickup owned by his employer at the time of his death. The Reutzel Company was performing work on a Northern Natural Gas Company pipeline approximately Vi mile from the crossing. The land on both sides of the railroad track at that point was owned by a farmer, Virgil Stander. The only passage to the area where the work was being performed was a private road on Stander’s property. Stander had given the decedent’s employer permission to use the private road and crossing for access to that portion of the pipeline located on his property. The members of the train’s crew gave an eyewitness account of the collision. According to the crew, when the train (composed of seven diesel engines and 88 freight cars) was approximately A of a mile from the crossing, they saw a white pickup truck cross the tracks in a northerly direction. When the train was approximately 300 feet from the crossing the same truck, moving in a southerly direction, came back onto the crossing. The lead engine struck it broadside. The train stopped about sixteen cars and seven engines east of the point of impact.

Testimony at trial demonstrated that work on the pipeline on Stander’s property had been going on for five to six months prior to the accident. The Reutzel Company employees used the crossing frequently, at least several times a day, during that period. Approximately 20 workers were involved in the pipeline repair and, when trains passed, the crew members and the construction workers often exchanged greetings. Approximately eight to ten trains a day passed over the track. The railroad right-of-way was 120 feet wide, the grade from the north to the south was steep, and the plaintiff’s evidence was that the weeds along the track had not been cut during 1972. In fact, several witnesses testified that the weeds were so high and so close to the track that it was necessary to drive a car onto the track to see a train approaching. At the time of the accident, the road on Stander’s property was soft and had deep ruts in it.

Contributory Negligence

The railroad claims that the decedent was guilty of contributory negligence more than slight as a matter of law and that recovery is thus barred by Nebraska’s comparative negligence statute. Contributory negligence is an affirmative defense under Nebraska law and the defendant has the burden of proving it. The general rule governing a motorist’s conduct when approaching a railroad crossing in Nebraska is set forth in Milk House Cheese Corp. v. Chicago, B. & Q. R. Co., 161 Neb. 451, 73 N.W.2d 679 (1955):

It is the duty of a traveler on a highway, when approaching a railroad crossing, to look and listen for the approach of trains. He must look, where, by looking, he could see, and listen, where, by listening, he could hear, and if he fails without reasonable excuse to exercise such precautions, then he is guilty of contributory negligence more than slight, as a matter of law, and no recovery can be had for damages resulting from a collision with a passing train.

73 N.W.2d at 686.

See also Neusbaum v. Chicago & N. W. R. Co., 162 Neb. 754, 77 N.W.2d 299 (1956); Kepler v. Chicago, St. P., M. & O. R. Co., 111 Neb. 273, 196 N.W. 161, cert. denied, 265 U.S. 589, 44 S.Ct. 635, 68 L.Ed. 1194 (1923).

Nebraska has rejected the doctrine that a driver must stop, look and listen before going upon a crossing. As early as 1910 the Nebraska Supreme Court, upholding a plaintiff’s verdict in a crossing case in Crabtree v. Missouri Pacific R. Co., 86 Neb. 33, 124 N.W. 932 (1910), observed:

The rule in this state is not that there is an absolute obligation upon a person crossing a railway track to stop, look, and listen before attempting to cross, but as laid down in the O. R. V. R. Co. v. Talbot, 48 Neb. 627, 67 N.W. 599, the duty of the traveler upon a public highway approaching a railroad crossing is to exercise ordinary care. “A party in going upon a railroad crossing without first listening and looking for the approach of a train, without a reasonable excuse therefor, * * * and if such failure to look and listen contributes to the party’s injury, he cannot recover.” The qualifying words, “without a reasonable excuse therefor,” are of great significance in this connection. If, as in this case, the view of approaching trains is obstructed by freight cars standing near the crossing; if the traveler’s attention is distracted by moving trains upon other tracks or by other sounds or sights; if no warning signals are given or lookouts stationed — it is a question for the jury as to whether or not the traveler exercised ordinary care.

124 N.W. at 936 (emphasis added).

In other Nebraska crossing accident cases it has also been held that, depending upon the circumstances involved, the question of a motorist’s contributory negligence is one of fact for the jury. See Hall v. Union Pacific R. Co., 113 Neb. 9, 201 N.W. 678 (1924); Hook v. Payne, 109 Neb. 252, 190 N.W. 581 (1922). See also Brunk v. Chicago, B. & Q. R. Co., 207 F.2d 354 (8th Cir. 1953), where this court, applying Nebraska law, held the issue under the Nebraska comparative negligence statute to be one of fact for the jury. Thus, there is no per se rule of conduct which, if not met, bars recovery. Rather, each case must stand or fall on its own facts. In Chicago, B. & Q. R. Co. v. Beninger, 373 F.2d 854 (8th Cir. 1967), this court applied what it felt to be Nebraska law concerning the determination of contributory negligence:

This court in cases arising from Nebraska has likewise held:

“But if on all the evidence reasonable minds might fairly differ in their conclusion as to the existence of contributory negligence or as to its degree being more than slight in the circumstances, the question is for the jury to determine. * * *
“ ‘The test under Nebraska’s comparative negligence statute is not based upon absolute degrees of negligence but rather upon a comparative test of the relative degrees of negligence between the parties.’ ” Hutchinson v. Fouts, 8 Cir., 349 F.2d 946, 951; Continental Can Co. v. Horton, 8 Cir., 250 F.2d 637, 644.

373 F.2d at 859.

The railroad’s argument that recovery should be barred because the decedent’s conduct amounted to more than slight contributory negligence as a matter of law misstates Nebraska law. Before determining that a plaintiff’s negligence is a bar to recovery under the Nebraska comparative negligence statute, one must compare the plaintiff’s conduct with that of the defendant.

As stated by the Nebraska Supreme Court in Ripp v. Riesland, 170 Neb. 631, 104 N.W.2d 246 (1960):

The words “slight” and “gross” as employed in the comparative negligence act of this state are comparative terms. The test the statute provides is not based upon absolute degrees of negligence but rather upon a comparative test of the relative degrees of negligence between the parties. The negligence of the plaintiff or defendant is not to be evaluated as slight, gross, or otherwise, standing alone. The criterion by which the degree of negligence of plaintiff is to be measured is the extent thereof by comparison with the negligence of defendant.

104 N.W.2d at 263.

See also Johnson v. Rouecke, 188 Neb. 716, 199 N.W.2d 1 (1972). Thus, evaluation of the decedent’s conduct alone cannot serve as a proper criterion for a directed verdict under Nebraska law without a comparative evaluation "of the defendant’s conduct.

In the present case, there is little testimony as to what the decedent did before the fatal collision. The evidence revealed that he drove safely across the tracks several minutes before the collision in order to give a signal to his fellow workmen. He then apparently turned around and headed back across the track in the opposite direction. The evidence was that one could not see in the direction from which the train was approaching until completely on the tracks. This condition existed because of tall weeds on the railroad right-of-way. There was no evidence that the decedent failed to stop, that he failed to listen, or that he failed to look for any train within a zone of danger before proceeding onto the tracks. The jury was entitled to believe that the decedent did stop his truck and observe, as best he could, that area which he considered to be the zone of danger. In the absence of affirmative proof to the contrary the jury could also have found that the driver saw nothing within that zone of danger before he proceeded onto the track and that he was never aware of the fast-approaching train at any time. On the other hand, under the proven factual circumstances, a jury could have found that the decedent may have been guilty of some negligence in attempting to cross the track when his view was partially obscured.

In comparison to the decedent’s conduct, there was affirmative evidence by the train crew, as well as by a speed recording device, that the train was exceeding the speed limit before and at the time of collision. There was controverted testimony that, even after the presence of the truck was known, the train crew failed to blow its whistle or ring its bell. There was some evidence that the train crew was not keeping a proper lookout for workmen using the crossing. Cf. Carter v. Chicago, B. & Q. R. Co., 175 Neb. 188, 121 N.W.2d 44 (1963). There was further evidence that the railroad made some effort to maintain the crossing but at no time cut the weeds which affected the view of those on the approaches.

We are satisfied that the conflicting evidence pertaining to the train crew’s conduct and the decedent’s actions raise the kind of questions to be resolved by a jury under the Nebraska comparative negligence statute. The preference for resolution by a jury in such instances was emphasized by the Nebraska Supreme Court very early in Wallenburg v. Missouri Pacific R. Co., 86 Neb. 642, 126 N.W. 289 (1910):

The next inquiry concerns the plaintiff’s negligence. Contributory negligence is but an inference to be deduced from primary facts. Individual minds frequently differ radically in drawing the conclusion of negligence from admitted or established facts, and the judgment of a layman not infrequently is as sound as the logic of a judge upon the subject. The questions of negligence and contributory negligence are therefore as likely to be wisely solved by a jury as by a court, and ordinarily should be committed to the tribunal provided by law for ascertaining litigated facts.

126 N.W. at 291.

A jury represents the mores of the community and draws from the combined common experiences of its members. Their composite judgment of what constitutes reasonable care and the comparative extent to which the conduct of each party meets that standard is far better than that of a single judge. We therefore conclude that the district court correctly refused to direct a verdict on the basis of contributory negligence.

Duty of Due Care at Private Crossing

We turn now to the question of the duty owed by the railroad to the decedent. The railroad contends that since the farm road was a private crossing, the railroad owed a duty of reasonable care only to the landowner. It is argued that since the decedent was a trespasser or a bare licensee, the only duty the railroad owed to him was that of avoiding the intentional, wanton or willful infliction of harm. We disagree.

There are no Nebraska cases which specifically define the duty in cases involving private crossings. It would appear, however, that at common law the nature of the crossing was immaterial so that a railroad owed the same duty to exercise reasonable care at both private and public crossings. See 22 R.C.L. Railroads, § 233; 65 Am.Jur.2d, Railroads § 504. See also Johnston v. Delano, 175 Iowa 498, 154 N.W. 1013 (1915); Dickerson v. Terminal R. Ass’n, 284 S.W.2d 568 (Mo.1955). Cf. Atlantic Coast Line R. Co. v. Futch, 263 F.2d 701 (5th Cir. 1958), cert. denied, 360 U.S. 935, 79 S.Ct. 1456, 3 L.Ed.2d 1547 (1959). This is especially true where the railroad has undertaken a duty to maintain the crossing. As stated by the Pennsylvania Supreme Court:

While there does not appear to be any clear authority directly on this point we are of the opinion that in circumstances such as those presented by this case, regardless of whether the crossing is considered a private or a public one, the railroad, having undertaken to maintain the crossing in good repair, is under a duty to keep it reasonably safe for use by the public.

Pro v. Pennsylvania R.R. Co., 390 Pa. 437, 135 A.2d 920, 923 (1957).

In an early Nebraska decision the court held that the railroad owed a duty to exercise reasonable care on a private crossing, where the railroad had acquiesced in its use by members of the public. See McQuin v. Missouri Pacific R. Co., 122 Neb. 423, 240 N.W. 515 (1932). In the present case, there was evidence from which the jury could have found that the railroad was aware of the use of the crossing by workmen over a 5-6 month period. The Reutzel crew (numbering over 20 men a day) used the crossing several times a day. The railroad was aware that the workmen were repairing a gas line, a portion of which even ran under the railroad track. We conclude in the present case that the railroad had a duty to exercise reasonable care towards all persons using the crossing. The question as to their status (trespasser, licensee, etc.) is immaterial, we believe, under Nebraska law given the facts at hand.

Statutory Duty

We now turn to the question of whether the trial court properly instructed the jury on the railroad’s duty under the Nebraska private crossing statute. That statute reads as follows:

Crossings; private; construction. Whenever any person owns land on both sides of the right-of-way of any railroad, such railroad shall provide and keep in repair at least one adequate means for such landowner to cross the right-of-way. Any interested landowner with land on both sides of the right-of-way of any railroad, may file written complaint with the commission against any such railroad that the crossing is not adequate or is unsafe and dangerous to the life and property of those who use the same, and the commission thereupon shall make such investigation, hold such hearing as may be necessary, and shall issue such orders as it shall deem necessary, proper and adequate. If circumstances warrant, the commission may require overhead, underground, or grade crossings, and require wing fences at underground crossings, or may require existing crossings to be relocated so as to be safe to those who use them, but where such special crossing involves an expenditure of more than seven hundred dollars, the landowner shall bear one half the expenses in excess of seven hundred dollars.

Neb.Rev.Stat. § 75-413 (1943).

The district court instructed:
You are further instructed that in this case, the defendant had a duty to provide and keep in repair the crossing and approaches within the right-of-way where the accident happened and that the duty was for the benefit of the landowner and anyone, such as the decedent, who was on the property with the landowner’s permission.

Again, there are no Nebraska cases construing the statute. Cases from other jurisdictions interpreting similar statutes appear to be divided over whether or not the duty to maintain the crossing and approaches is solely for the landowner’s benefit. See, for example, Johnson v. Chicago, M. & St. P. Ry. Co., 96 Minn. 316, 104 N.W. 961 (1905); Chesapeake & Ohio R. Co. v. Faison, 189 Va. 341, 52 S.E.2d 865 (1949). Some states have construed similar statutes broadly and have extended the duty to include all persons who are entitled to use the crossing as a matter of right. See, e. g., Gifford v. Pennsylvania R. Co., 119 N.J.L. 397, 196 A. 679 (1938).

There is language within the Nebraska statute which indicates a legislative intent against a narrow construction. The statute gives the landowner authority to file a complaint with the Commission when he feels the crossing is a danger to “the life and property of those who use the same.” The statute further gives the Commission power to relocate crossings “so as to be safe to those who use them.” It seems incongruous in construing this safety statute to argue that the purpose of the statute was to place upon the railroad a duty to construct and to keep the crossing safe for some people but not for others. Humane considerations of safety for life and limb must have a greater value than this. We believe the actual purpose of the statute is to evolve a duty upon the railroad to exercise reasonable care in maintaining a private crossing so as to protect people using the crossing.

We find two early Nebraska cases helpful in reaching this construction. In interpreting the predecessor statute to 75 — 413, the Nebraska Supreme Court observed:

It is true that it has been held that passageways for the passage of unattended livestock are not within the statute requiring railroads to provide farm crossings. Railroad Co. v. Severin, 30 Neb. 318, 46 N.W. 842. But that is immaterial. Crossings, whereby the farmer may drive his stock from one side to the other, are within the statute; and, if the railroad company can provide a free and safe subway, it may avoid the dangers attendant upon a grade crossing, or at least decrease its use and consequent dangers. Thus both railroad company and the public are protected from dangers incidental to railroad operation,

Reichert v. Keller, 58 Neb. 178, 78 N.W. 381, 382 (1899).

In another early Nebraska case, Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90, 56 N.W. 796 (1893), a nine-year-old boy was struck and killed by a train after he wandered onto an unfenced right-of-way in rural Nebraska. The Supreme Court found evidence of negligence in the violation of the fencing laws and reversed for a new trial since the trial court had refused to admit evidence on this point. The court said:

By the statutes of this state, railroad companies are required to fence their tracks, and while the main objects of this law are to protect stock running at large and increase the safety of passengers on railway trains, yet the fencing of their tracks by railroad companies is a positive duty enjoined upon them by law. It is in the nature of a police regulation, and their failure to obey the statute is negligence. In the case at bar the administrator, to recover by reason of the failure of the railroad company to erect fences, must have proven that his intestate’s death was caused by such negligent omission of the railroad company.

56 N.W. at 797.

Thus, although the statute in question spoke only of a duty to fence out livestock, the court interpreted it as a general safety regulation. This interpretation was affirmed in dicta as recently as 1964 in Linebrink v. Chicago & N. W. R. Co., 177 Neb. 838, 131 N.W.2d 417, 420 (1964). We find no error in the instruction of the district court.

We conclude that the issues of negligence and contributory negligence were properly submitted to the jury, that under Nebraska law the railroad owed a duty to the decedent to exercise reasonable care at the private crossing since the user was lawfully on the crossing, and that the trial court properly instructed the jury under Nebraska law. Judgment affirmed.

      . The Nebraska comparative negligence statute, Neb.Rev.Stat. § 25-1151 (1964), provides:
      In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury.

      . The Nebraska Supreme Court observed:
      There is no evidence showing that the road was a regularly laid out or dedicated public highway. The question is: Was it a road in fact used by the public? That the road was traveled by only a limited number of persons is not important in determining the question involved. The important question is: Was it open to all who desired to use it? If so, it was a road in fact although it might accommodate only a limited portion of the public, or though it might accommodate some individuals more than others. 13 R.C.L. 16, § 4. . . .
      Applying the rule announced in Chicago, B. & Q. R. Co. v. Metcalf, supra [44 Neb. 848, 63 N.W. 51], we hold that the evidence establishes that the road in question was a road in fact used by the public, although not laid out and dedicated to the public use, and that the place where the movement of the train started toward the crossing being eighty rods or less from the crossing, it was the duty of the defendant railroad company to ring the bell or blow the whistle continuously as it approached the crossing.
      McQuin v. Missouri Pacific R. Co., 122 Neb. 423, 240 N.W. 515, 520 (1932) (emphasis added).

      . An early Nebraska case further strongly suggests that the safety of the public is a proper legislative concern on farm crossings as well as on public crossings. In Holmberg v. Chicago, St. P., M. & O. R. Co., 115 Neb. 727, 214 N.W. 746 (1927), rev’d on other grounds, 282 U.S. 162, 51 S.Ct. 56, 75 L.Ed. 270 (1930):
      [T]he source of the state’s authority to adopt regulations for public safety at grade crossings is the police power of the state, and that the elimination of grade crossings, is within the scope of that power. The fundamental fact upon which its existence is justified is that its exercise promotes the safety of either or both of two distinct classes: (1) The passengers transported by the railways; and (2) travelers proceeding over the “intersected way.” These considerations apply to “farm grade crossings.” It must be conceded that each of these, in greater or less degree, is a place of potential danger. Indeed, some farm crossings, because of peculiar situation, may impose greater perils upon the public there in course of transportation, as well as upon persons and property on the premises where situated, than such as are incidental to usual grade crossings upon public highways.
      214 N.W. at 749-750.

      . As the New Jersey court observed in Gifford:

      By statute, the railroad was under a duty to provide and maintain that crossing as connecting the two parts of Bennett’s land. Bennett was of course entitled to use it as of right: and the same right naturally extended to persons in Bennett’s employ in connection with his land. Requests to charge predicated on a contrary view were properly refused.
      196 A. at 681.


author: SEITZ, Chief Judge.

text:
    Julian VILLANUEVA et al. v. Ossie Lockhart DANIEL, Appellant.
    No. 73-2091.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 2, 1974.
    Decided March 13, 1975.
    Ronald T. Mitchell, Pallme, Anduze & Mitchell, Charlotte Amalie, St. Thomas, V. I., for appellant.
    Roger L. Campbell, Loud & Campbell, Charlotte Amalie, St. Thomas, V. I., for appellees.

      Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

Julian Villanueva and other creditors obtained judgments against defendant-appellant (“debtor”) in the Municipal Court of the Virgin Islands and thereafter caused a parcel of her property to be sold at public auction to satisfy such judgments. The purchaser at such sale, Luther Benjamin (“purchaser”), paid the purchase price into court on July 27, 1966, the same day the marshal filed his return.

On September 1, 1966, a majority of the judgment creditors moved to confirm the sale under 5 V.I.C. § 489 (1967) but the purchaser did not join. The municipal court did not act on the creditors’ motion. The record does not reveal the reason for its inaction. Nevertheless, despite the municipal court’s failure to confirm, the purchase money was distributed to the creditors.

On November 15, 1966, the debtor and the purchaser entered into a contract with respect to the land sold at the execution sale. The contract, which contained various undertakings, contemplated that the parcel of real estate sold in the judicial sale be partitioned between the judgment debtor and the purchaser. At least part of the consideration running from the debtor to the purchaser under the terms of the contract was the surrender, by the debtor, of her statutory right of redemption, contained in 5 V.I.C. § 496 (1967).

On February 27, 1968, the purchaser himself filed a motion with the municipal court requesting that the judicial sale be confirmed nunc pro tunc as of September 1, 1966, the date the judgment creditors filed the original motion for confirmation. There is no record of an order disposing of this motion by the municipal court in 1968. A later order (1972) recites that the municipal court had earlier denied the 1968 motion. On December 23, 1969, the purchaser and the debtor held a conference with a judge of the municipal court concerning their November 15, 1966, contract. What eventuated we do not know. However, the sale was not confirmed at that time.

On April 24, 1972, the same creditors who had moved the municipal court for confirmation on September 1, 1966, again moved the court for confirmation. They asked that the sale be confirmed nunc pro tunc as of the date of their original motion. The purchaser filed an affidavit and a memorandum of law in support of the creditors’ motion.

By its order dated July 12, 1972, the municipal court recited that it had denied the purchaser’s February 1968 motion for confirmation “due to the contract filed with the Court dated November 15, 1966 between defendant Osee [sic] Lockhard Daniel [the debtor] and Luther Benjamin [the purchaser], and subsequent agreement of the attorneys of the parties at a conference with the court on the matter held December 23, 1969, .where certain actions were taken and report made to the Court. . . ” It went on in its order to confirm the sale nunc pro tunc as of September 15, 1971, an arbitrarily selected date approximately ten months prior to the date of the entry of the court’s order. Since the twelve month statutory redemption period ran from the confirmation date the debtor was thereby afforded a period of approximately two months in which to redeem the real property. On July 20, 1972, the purchaser filed a notice of appeal from the municipal court order with the District Court of the Virgin Islands. On September 14, 1972, within the twelve month period set in the order of the municipal court, the debtor attempted redemption of the property by tendering $45,000.00.

On appeal the district court reversed the order of the municipal court. It construed the municipal court’s failure to confirm at the time of the creditors’ first motion in 1966 as effectively extending the period of redemption from one year under Section 496 to six and a half years, the time that had elapsed since the judicial sale. The district court concluded that the municipal court was totally without power to so extend the redemption period and remanded the cause with instructions to confirm as of September 1, 1966.

The September 1, 1966 motion to confirm.

We believe the municipal court clearly erred in failing to grant the original motion for confirmation which the judgment creditors filed with the court on September 1, 1966. The creditors were unquestionably entitled to confirmation under Section 489. The record contains no objections to the sale by the debtor, the purchaser, any creditor or other interested party, nor any indication that the sale was irregular or unsatisfactory. In such a case, we believe that confirmation must be granted within a reasonable time after the motion to confirm is filed. Our conclusion is supported by a strong policy in this Circuit in favor of confirming judicial sales in the absence of fraud or other similar exceptional circumstances. See In re Stanley Engineering Corp., 164 F.2d 316, (3rd Cir.), cert. denied sub nom., Root v. Galman, 332 U.S. 847, 68 S.Ct. 351, 92 L.Ed. 417 (1948); Guaranty Trust Co. of New York v. Williamsport Wire Rope Co., 20 F.Supp. 634 (M.D.Pa.), aff’d sub nom. Comstedt v. Gilmore, 96 F.2d 766 (3rd Cir. 1937). This is the law of a number of other jurisdictions. We think that the purchaser was entitled to assert this error of the municipal court because of his obvious interest in early confirmation.

The remaining issue is whether some intervening factor renders it inequitable to confirm the sale nunc pro tunc as of September 1, 1966. Compare Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721 (1895). The debt- or contends that the terms of her contract with the purchaser and their later negotiations constitute such an intervening equity which renders it unfair to order the sale confirmed nunc pro tunc so as to deprive her of her redemption rights.

The recitals in the Agreement of November 15, 1966, explicitly assumed that confirmation of the public sale had taken place. Indeed, the agreement provided that the debtor was giving up her one year right of redemption in return for the property division stipulated in the agreement. We think it clear that the Agreement contemplated that the debtor’s redemption rights were to be replaced by her rights under the Agreement. Thus, the loss of her redemption rights was not a cognizable intervening equity of the kind which should prevent nunc pro tunc confirmation. If, as suggested, the purchaser has breached the Agreement, the debtor’s rights are confined to those remedies available in a breach of contract action. Indeed, the opinion of the district court suggests that such action was instituted and, if so, this case is clearly without prejudice thereto.

The judgment of the district court will be affirmed.

      . The statute does not give the purchaser a right to file a motion to confirm. However, such right exists at common law. See Raleigh & C.R. Co. v. Baltimore Nat. Bank, 41 F.Supp. 599 (E.D.S.C.1941); Martin v. Jones, 268 Ala. 286, 105 So.2d 860 (1958); Siekert v. Soester, 144 Neb. 321, 13 N.W.2d 139 (1944); See also Evans v. Hunold, 393 Ill. 195, 65 N.E.2d 373 (1946); Summars v. Wilson, 205 Ark. 923, 171 S.W.2d 944 (1943). We think the legislature might want to review and clarify some aspects of this statute, for example, by providing that the purchaser as well as the judgment creditors has a right to seek confirmation of a judicial sale.


author: VAN DUSEN, Circuit Judge. ROSENN, Circuit Judge

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Genous CAINES, Appellant.
    No. 74-1757.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 6, 1974.
    Decided March 6, 1975.
    J. Michael Spencer, Frederiksted, St. Croix, V. L, for appellant.
    Julio A. Brady, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., and John S. Wilbur, Jr., Asst. U. S. Atty., St. Croix, V. I., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Appellant contends that the July 19, 1974, judgment and commitment entered on the jury verdict finding defendant guilty of violating 20 V.I.C. § 504, must be vacated because (1) it is based on insufficient evidence, and (2) the receipt of inadmissible evidence of speed requires at the least a new trial. After careful consideration of the record before the district court, we reject both contentions and affirm the district court judgment.

The facts surrounding this tragic homicide, occurring about 8 P.M. on Sunday, May 12, 1974, on St. Croix, U. S. Virgin Islands, are disclosed in the evidence, considered in the light most favorable to the verdict, as follows: Defendant Genous Caines was driving a 1969 Pontiac Ventura west on the main highway of St. Croix, called Centerline Road, which is a blacktopped, two-lane highway running in a straight east-west direction for several miles and having a speed limit of 40 m. p. h. At this approximate time, Wilfred Allick, a passenger in another car, was being driven east from the town of Frederiksted to his home near Centerline Road. When the car containing Mr. Allick came to the vicinity of his house, it pulled off to the lefthand shoulder on the north side of the road. Mr. Allick was seen emerging on the lefthand side of the car, waiting for the car to continue proceeding easterly, and beginning to cross the road, going from north to south. N.T. 44. In the near vicinity was a street light illuminating the road area in which Mr. Al-lick was walking. N.T. 44. Mr* Allick was observed by a Mr. and Mrs. Garnet, who were driving west to east behind the car which had carried Mr. Allick. N.T. 43. About the time when Mr. Al-lick was seen by Mr. and Mrs. Garnet as reaching the mid-line of the road and entering into the east-west lane, they could hear a car engine approaching like a “rumble” toward them and saw headlights “coming from the west.” N.T. 46. This car seen by the Garnets was the 1969 Pontiac operated by defendant. N.T. 50. Mr. Allick had reached a point approximately in the center of the westbound lane when he was struck and killed by the appellant’s vehicle. Mr. Garnet, who had been driving for eight years, estimated his own speed at 30 miles per hour and that of the defendant’s car at approximately 70 miles per hour when it hit Mr. Allick’s body, which flew up in the air. N.T. 45, 48, 66, 67. Mr. Allick’s body then hit the windshield of defendant’s car and rolled off to a stop on the shoulder of the westbound lane. Defendant returned to the scene and said to Mr. Garnet, “I didn’t see the man.” N.T. 50.

Dr. Glenn, a pathologist and the medical examiner for the St. Croix Department of Health and Department of Law, testified that his duties included the investigation of deaths of unknown origin, including any type of death not occurring within a medical institution such as “death on arrival cases.” He stated that he had performed approximately 100 autopsies a year since 1957 and that he performed an autopsy on the body of Allick on the morning of May 14, 1974. His “external findings were basically those of severe and multiple injury involving almost the entire extent of the body, including the head right down to the feet and it consisted mainly of massive bruises, deep lacerations and multiple fractures of the bones, from the skull, chest, legs, arms and so forth” (N.T. 21). He testified that death resulted from several severe, multiple injuries and that each of at least four separate injuries could have independently caused Allick’s death. Further, he testified as follows concerning Allick’s injuries:

“. . . from the type of injuries, they were very characteristic of automobile injuries.
“In this instance basically our findings are based on the body itself, not on an examination of the car or any truck or what have you, but the body itself. It was my impression that the body was struck from the front, just the front part of the body. One of the first injuries was the legs being struck, fractured, in a position that indicates he was struck from the front, the fractures being all displaced backwards, and then the other injuries due to the body being knocked, sometimes they fly over the car, sometimes they spin off to the side
“. . . let’s assume that you are going at a relatively slow speed, you knock down an animal or human being or what have you, the car is more likely to pass over the body and you have signs of tire marks and scraping of the skin and so forth. Higher speeds you strike an animal or human being, in most cases the body will fly away from the car from the severity of the impact and will go over the top or just spin off to one side of the car depending on whether it is a right or left bumper.
“But since the bumper is usually the first thing that hits anybody that is upright, the bumper lifts the leg off the pavement and throws the body over the top of the car. And it would be unusual for a very high speed car to pass over somebody if the person was to the right because the weight of the body is from your waist up.
“So since that is the heaviest part of the body and you are hitting the legs first, you tend to go over the top of a car. That is why you get very characteristic fractures usually at the knee level or slightly below the knee from the bumper impact.” N.T. 33-36.

A witness, Mr. Joseph, observed Allick alight from the car on the north side of Centerline Road. Allick had started across the road when a car “struck the man. The man flew in the air. . . . After he fly in the air, he stay in the air a little while and hit him again in the windshield and knock in the windshield again and then roll off to the side.” (N.T. 167).

The appellant first contends that testimony as to speed introduced by the prosecution should not have been admitted, variously contending that the witnesses gave opinions without stating the facts on which the opinions were based; that the witnesses were never shown to have any ability to gauge the velocity of a car; and that the testimony was so “patently unreliable” as to be incompetent.

Ever since 1906, the rule in this Circuit has been as stated in this language of Porter v. Buckley, 147 F. 140, 141-42 (3d Cir. 1906):

“In Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. [99] 104, Chief Justice Cooley, said:
'. . . Any intelligent man, who had been accustomed to observe moving objects, would be able to express an opinion of some value upon it the first time he saw a train in motion. The opinion might not be so accurate and reliable as that of one who had been accustomed to observe, with timepiece in hand, the motion of an object of such size and momentum; but this would only go to the weight of the testimony and not'to its admissibility. Any man possessing a knowledge of time and of distances would be competent to express an opinion upon the subject.’
“Rogers on Expert Testimony (2d Ed.) p. 244 says:
‘Questions as to the speed with which trains were moving are not, strictly speaking, scientific inquiries, but any man possessing a knowledge of time and distances is usually competent to express an opinion on that subject.’
“Lawson on Expert and Opinion Evidence (2d Ed.) p. 505, gives the following rule:
‘The opinions of ordinary witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained, or the facts cannot otherwise be presented to the tribunal, e. g., questions relating to time, quantity, number, dimensions, height, speed, distance, or the like.’
“. . . Applying to the case in hand this rule, which we think is supported by the best authorities, we find that Mrs. Thomas testified that she had witnessed horse races and, on several occasions, had timed express trains running through Hackettstown and Rutherford, N. J., that she had never seen anything go so fast on the public highway as the defendant’s automobile, and that she should judge it was going ‘at the rate of 40 or 50 miles an hour as the express goes through town.’ It thus appears that if it was necessary that her opinion concerning the speed of the automobile should be authenticated by proof that she had previously observed the speed of moving objects, that proof was furnished. The weight of her opinion was a question wholly for the jury.”

Similarly, in Government of the Virgin Islands v. Rodriguez, 300 F.Supp. 909, 910, 7 V.I. 355 (D.V.I.1969), Judge Maris stated that corroboration of evidence taken from a speedometer may be provided “by the opinion evidence of a police officer or other person as to the defendant’s rate of speed if the witness first shows some experience in observing the rate of speed of moving objects or some other satisfactory basis for his opinion.” See also Finnerty v. Darby, 391 Pa. 300, 138 A.2d 117 (1958); Peoples Drug Stores v. Windham, 178 Md. 172, 12 A.2d 532 (Md.1940); 2 Wigmore on Evidence § 571 (3d ed. 1940); 7 id. § 1977.

Under these precedents, the district court properly admitted the testimony offered by the prosecution as to the defendant’s speed. Mr. Garnet, a driver of eight years’ experience, knew his own car’s speed and was therefore in a good position to judge the speed of an oncoming car. He was able to put a figure on that speed, 70 m. p. h., but candidly admitted on re-cross-examination that this was an estimate of speed. N.T. 66, 69. To hold that his opinion as to speed was too unreliable to be admitted would in effect cancel all suits in which the plaintiff was required to prove the defendant’s speed and where the defendant was not, at the time of the accident, being clocked by a bystander or being tailed by the police. This the law does not require.

Mrs. Garnet’s testimony that the defendant’s car was “going very fast” is arguably subject to the defendant’s objections that, not being a driver, she was not competent to give her opinion as to speed, and that her opinion — “very fast” —was too vague to be probative. See, e. g., Stearrett v. Syva, 285 A.2d 816, 818 (Del.Super.1971). However, her testimony was merely cumulative and corroborated her husband’s more experienced and precise testimony that the defendant was traveling at 70 m. p. h. For these reasons, we do not believe that the district court committed reversible error in allowing her testimony to go to the jury.

Further corroboration was provided by Dr. Glenn’s detailed description of the injuries the deceased sustained, by witnesses’ descriptions of the violence with which the deceased’s body was struck by the car, and by photographs of the car admitted into evidence, which showed the extensive damage caused to the front of the car by the impact. The only evidence to the contrary is the defendant’s own testimony that he was traveling at 45 m. p. h. N.T. 120. Considering all these factors together, there can be no doubt that the question of the defendant’s speed was properly put to the jury through competent evidence adduced by the prosecution.

The appellant’s next contention is that, even if there was enough evidence for the jury to find that he was traveling at an excessive speed, such a finding is insufficient, as a matter of law, to convict on a charge of “reckless driving” or driving “with disregard for the safety of others.”

Although we have found no decisions in this jurisdiction which are directly on point, the weight of authority appears to be that other incriminating circumstances must be combined with excessive speed to sustain a charge of reckless driving. See Preston v. State, 56 So.2d 543 (Fla.1952); 7 Am.Jur. Automobiles and Highway Traffic § 281 (2d ed. 1963). But cf. Sheffield v. State, 90 So.2d 449 (Fla.1956) (distinguishing Preston, supra); People v. Kelly, 70 Cal.App. 519, 234 P. 110 (1925). We believe, however, that the prosecution supplied ample evidence of the circumstances attendant on the defendant’s speeding to support the jury’s finding of criminal dereliction. Most important is the unchallengeable fact that three other persons, two of them in a moving vehicle and observing “from [a] distance,” N.T. 43, had no difficulty in seeing the deceased cross the street, whereas Caines apparently never saw the deceased. Compare N.T. 43, 70, and 166-67 with N.T. 119. Also probative of the defendant’s recklessness is the fact that the deceased crossed the road directly in front of Garnet, who did not hit him, or even indicate that he was forced to take evasive maneuvers to avoid hitting him. The defendant would also have had time in which to observe the deceased and, if necessary, to take precautions against a possible accident; yet the defendant struck the deceased without ever having seen him. These circumstances, combined with considerable evidence that the defendant was traveling approximately 30 m. p. h. in excess of the speed limit, thereby drastically decreasing his available time to see the deceased, are, we believe, sufficient to sustain the jury’s conviction.

The July 19, 1974, judgment and commitment will be affirmed.

ROSENN, Circuit Judge

(dissenting).

Since this is a criminal case, the law imposes a more stringent burden of proof on the prosecution than it would impose, in the same circumstances, upon a plaintiff claiming negligence in a civil action. The prosecution must prove the defendant’s guilt beyond a reasonable doubt. Although in this case the Government is entitled to the benefit of all reasonable inferences because it has a favorable verdict, I cannot agree that the prosecution has introduced sufficient evidence upon which a jury could convict the defendant.

The Government charges that the defendant caused the death of a person by operating a vehicle “in a reckless manner or with disregard for the safety of others.” 20 V.I.C. § 504. We first must interpret this statutory standard against which the defendant’s conduct is to be judged.

Reckless driving . . connotes culpable or criminal negligence amounting to a careless disregard of the rights or safety of others “the consequences of which could reasonably have been foreseen by the driver »

Commonwealth v. Stephens, 179 Pa.Super. 255, 258, 115 A.2d 904, 905 (1955), quoting Commonwealth v. Forrey, 172 Pa.Super. 65, 68, 92 A.2d 233, 234 (1952). The word “reckless” in a statute providing for criminal liability has a clear and commonly understood meaning of something more than mere failure to exercise due care. People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785, 787 (1943); Commonwealth v. Aurick, 342 Pa. 282, 288, 19 A.2d 920, 923-24 (1941); State v. Rachels, 218 S.C. 1, 61 S.E.2d 249, 252 (1950). Moreover, the driving of an automobile at a high rate of speed is insufficient by itself to support a conviction for “reckless driving”; other facts showing a reckless disregard of the consequences must be proven. State v. Andrews, 108 Conn. 209, 214, 142 A. 840, 841 (1928); People v. Grogan, 260 N.Y. 138, 144, 183 N.E. 273, 275 (1932).

In this case, the Government relied primarily on three pieces of evidence: (1) the testimony of Samuel Garnet, who estimated defendant’s speed at 70 m. p. h., (2) the nature of the victim’s injuries, and (3) the damage to the defendant’s car.

I disagree with the majority that Garnet was “in a good position to judge the speed of the oncoming car” because he knew the speed of his own car. Since Garnet and the defendant were proceeding in opposite directions, an accurate estimate of speed would have been difficult at best even in daylight. Here, however, Garnet made -his estimate at night. Moreover, no proof was offered concerning the length of time during which Garnet had an opportunity to observe defendant’s car and form an opinion as to its speed. I therefore do not believe that' Garnet’s testimony concerning the speed of the defendant’s car was competent, or if it was, that it is entitled to much weight in this criminal case.

The serious nature of the plaintiff’s injuries adds little because a vehicle operated at a speed of 40 m. p. h., the speed limit on Centerline Road, or at 50 m. p. h., not necessarily a “reckless” rate of speed, might have inflicted similar injuries, depending upon the weight of the car and other physical facts. None of these have been established. The damage to defendant’s car also might have been sustained at speeds of 40 or 50 m. p. h., again depending upon other factors such as the weight of the victim, and the age, condition, and quality of the body of the defendant’s car. The record is not helpful concerning any of these factors.

I believe the record simply contains insufficient evidence to sustain defendant’s conviction. Entirely too many imponderables are present. Defendant, an experienced driver, was driving on a blacktopped, two-lane highway running in a straight east-west direction for several miles. Photographs entered in evidence indicate that the stretch of highway where the accident occurred is not densely populated. The speed limit was 40 m. p. h. Only a street light “in the near vicinity” penetrated the darkness, and blacktopped highways are known for their inability to reflect light. The record does not establish the distance between the light and the point of contact with the victim, the candle power of the light, or the degree and area of illumination. The record also does not indicate whether the night was moonlit or dark.

On the other hand, the record does disclose circumstances which could have prevented defendant from seeing the victim, even if defendant had been driving at a speed of only 40 m. p. h. Defendant was driving east to west on the appropriate lefthand side of the highway. The victim was a passenger in a car proceeding in the opposite direction. When the victim alighted from the car on the north side of the highway, he waited for the car to proceed easterly and then started south across the road. Thus, while he was crossing the eastbound lane to the south side of the highway, he was concealed momentarily from the defendant’s view by the car from which he had alighted and which was proceeding in the direction of the defendant. Additionally, since the victim was crossing the highway north to south and perpendicular to the route in which defendant was traveling, defendant in all probability could not have seen the victim until the victim entered the westbound lane and came within range of defendant’s headlights. If the beam of the headlights was focused properly, it was directed toward the defendant’s westbound lane only. Under these circumstances, a person operating a motor vehicle even at a relatively slow speed quite conceivably might not have seen a pedestrian crossing the highway until it was too late.

I would reverse the judgment and sentence of the district court with directions to enter a judgment of acquittal.

      . 20 V.I.C. § 504 contains, inter alia, this language:
      “When the death of a person ensues within one year as a proximate result of injury received ... by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the persons so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle.”
      The information charged that “Genous Caines did cause the death of one Wilfred Elisha Allick a human being by operating a motor vehicle in a reckless manner with disregard for the safety of others; . . . .”

      . The defendant, a taxicab driver, was not on duty at the time of the accident.

      . An autopsy found that Mr. Allick’s blood alcohol level at the time of his death was .22%, a relatively high level of intoxication. N.T. 37-38. This fact, of course, does not preclude the jury from finding that the defendant’s manner of driving was criminally negligent.

      . In the Virgin Islands, one drives on the lefthand side of the road.

      . Head injuries, including concussion of the brain, chest injuries, massive internal and ex-temal hemorrhaging, and vascular shock. N.T. 29.

      . Mr. Joseph’s testimony that the car had “a lot of speed,” N.T. 167, was stricken upon the objection of defense counsel. N.T. 170.

      . Receipt in evidence of Mrs. Martinez’s testimony that she saw the defendant “pass [her] very fast” shortly before the collision as she drove west on Centerline Road was not reversible error. See Finnerty v. Darby, supra, 138 A.2d at 124; 2 Wigmore on Evidence § 382 (3d ed. 1940).

      . While disclaiming any intent to rely on this ground, the court in Preston took pains to note that there was no evidence introduced to show that the collision in that case had caused the deceased’s death. 56 So.2d at 544. It is obvious that in the case before us there could be no doubt that the deceased died as the direct result of being struck by the defendant’s car.


author: PER CURIAM:

text:
    Adrien FOURNIER, Plaintiff-Appellant, v. CANADIAN PACIFIC RAILROAD, Defendant-Appellee.
    No. 319, Docket 73-1704.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 28, 1975.
    Decided Feb. 27, 1975.
    Cornelius O. Granai, Barre, Vt. (John E. Bernasconi, Barre, Vt., of counsel), for plaintiff-appellant.

      Robert D. Rachlin, St. Johnsbury, Vt. (Glenn A. Jarrett, St. Johnsbury, Vt., of counsel), for defendant-appellee.
    Before KAUFMAN, Chief Judge, and FEINBERG and MANSFIELD, Circuit Judges.
   PER CURIAM:

The plaintiff, a section worker, sued the Canadian Pacific Railroad under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60, to recover damages for an injury to his left leg and foot which occurred while employed by the defendant. The railroad moved for summary judgment on the basis of a settlement agreement signed by Fournier which generally released the railroad from all liability arising from the accident. Finding no issue of fact to be tried that would permit the release to be set aside, Chief Judge Holden of the District of Vermont, after receiving affidavits from both sides, granted summary judgment dismissing the complaint. Plaintiff urges that triable issues of fact are presented with respect to the validity of the release. We agree, and reverse.

In an F.E.L.A. case a release may be set aside if both parties acted under a mutual mistake of fact or the railroad’s representative deceived the plaintiff as to the contents of the release. Callen v. Pennsylvania R.R., 332 U.S. 625, 630, 68 S.Ct. 296, 92 L.Ed. 242 (1948); Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). On a motion for summary judgment, furthermore, the inferences drawn from the facts before the court must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam); Empire Electronics Co. v. United States, 311 F.2d 175, 179-80 (2d Cir. 1962) (Kaufman, J.). “If when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits.” Empire Electronics, supra, 311 F.2d at 180, quoting Ramsouer v. Midland Valley R. Co., 135 F.2d 101, 106 (8th Cir. 1943). Applying this standard, inferences of fraud or mistake could be drawn from the materials before the district court in the present case.

Although the settlement agreement recites that, in consideration of the defendant’s payment of $916 to him, Fournier generally released it of all claims arising out of the accident, Fournier’s deposition, viewed most favorably to him, supports an inference that the parties intended, notwithstanding the agreement’s broad language, to settle only his claim for back wages, leaving open the matter of damages for injuries. According to the deposition the settlement discussions preceding the agreement to the release involved making “a settlement for loss of pay as a result of injuries suffered on the job.” (Emphasis added). The matter of wages lost due to absence from the job caused by the injury was the predominant, if not the sole, focus of the settlement discussions. It is undisputed that the railroad representative first proposed a settlement of 50% of back wages, and agreement was reached at an amount equal to 75% of the wages lost. Alternatively, it might reasonably be concluded that the railroad’s representative made statements that were calculated to persuade Fournier that claims for back wages were all that he was to release. Plaintiff’s deposition states “I believe Mr. Simpson [the representative] that the release was solely for past loss of wages.” The inference of fraud or mistake in the procuring of a general release is further supported by the fact that the amount of the settlement — $916 — is clearly related only to wages lost and is unrelated to the total damages suffered by Fournier, and by an indication in the record that at the time of settlement the railroad had no final medical report on Fournier which would normally be obtained to settle a claim for injuries but not one for back wages lost.

Thus plaintiff claims he was told and believed that he was settling solely a claim for back wages, which would support setting aside the release, whereas defendant denies plaintiff’s assertions and relies on the clear language of the release. Although, as Chief Judge Holden has indicated, trial would likely result in a judgment for the defendant, “the court, on a motion for summary judgment, cannot try issues of fact but can only determine whether there are issues of fact to be tried; and, once having determined this affirmatively must leave those issues for determination at trial.” Empire Electronics Co. v. United States, 311 F.2d 175, 179 (2d Cir. 1962). Since issues of fact are present here, we reverse.


text:
    CITY OF BOSTON et al., Plaintiffs-Appellants, v. Claude S. BRINEGAR et al., Defendants-Appellees.
    No. 74-1255.
    United States Court of Appeals, First Circuit.
    March 5, 1975.
    Peter L. Koff, Asst. Corp. Counsel, and Daniel D. Sullivan, Boston, Mass., for plaintiffs-appellants.
    John Silas Hopkins, III, Boston, Mass., with whom Paul B. Galvani, William F. McCarthy, John H. Mason, Ropes & Gray, and Neil L. Lynch, Boston, Mass., were on brief, for Massachusetts Port Authority, defendant-appellee.
    Edmund B. Clark, Atty., Dept, of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., Raymond V. Picard, Asst. U. S. Atty., and John J. Zimmerman, Atty., Dept, of Justice, were on brief, for federal defendants-appellees.
    Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
   MEMORANDUM AND ORDER

Plaintiffs, consisting of the City of Boston, Boston residents, and a committee opposed to airport expansion, requested a preliminary injunction to halt runway construction work at Logan International Airport in Boston, and associated relief, under the National Environmental Protection Act, 42 U.S.C. § 4382 (2)(c), and the Airport Development Aid Act, 49 U.S.C. §§ 1701-42. Defendants were the Massachusetts Port Authority, operator of Logan; Perini Corporation, its contractor; and the Secretary of Transportation and official of the Federal Aviation Administration. After an evidentiary hearing the district court denied preliminary relief, and this appeal followed.

Since argument of this appeal, substantially all work on the runways project has been halted by an injunction issued by the Massachusetts Superior Court under authority of the state environmental protection law, Mass.G.L. c. 30, §§ 61, 62. On February 5, 1975, in a comprehensive opinion, the Massachusetts Supreme Judicial Court affirmed both the injunction and the Superior Court’s determination that work could not be carried out by the Port Authority in furtherance of the runways project until 60 days following publication of a final environmental impact report complying with state requirements. Secretary of Environmental Affairs v. Massachusetts Port Authority, 1975 Mass.Adv. Sheet-, 323 N.E.2d 329 (Feb. 5, 1975). Such a report has yet to be completed.

Early this year the United States Department of Transportation (DOT) issued a federal environmental impact statement in essence approving the runways project as environmentally sound. This impact statement has since been presented to the Council on Environmental Quality. Based on its review of the impact statement, DOT has approved (insofar as environmental considerations are concerned) the modified layout plan including the runway project and has granted initial authority for an offer of federal assistance.

The cessation of work on the runways project since this appeal has been under consideration, coupled now with the issuance of the federal environmental impact statement, effectively moots the central question arising on this appeal, namely whether the district court should have preliminarily enjoined work on the runways until a federal environmental impact statement was prepared and considered by DOT. Appellants also requested an order that the FAA adopt regulations requiring the Port Authority, as a fund applicant, to maintain the status quo until an environmental impact statement had been issued and studied. This issue is moot to the extent such regulations would have related to relief against the Port Authqrity. The necessity of such regulations in the case of fund applicants in general is not an appropriate issue for this court to decide on an appeal from the denial of preliminary relief. Furthermore, since argument of this appeal, DOT has promulgated a regulation (as to which we express no opinion now) providing that implementing instructions issued by agencies under DOT, including the FAA, in connection with a loan or grant “shall limit the actions an applicant may take prior to completion and review of the final statement and approval of the application.” Order 5610.1B, par. 4e(2), 39 Fed.Reg. 35234 (Sept. 30, 1974).

We are accordingly ordering dismissal of the appeal. We refrain from passing judgment on the correctness of the district court’s action from which the appeal was taken, and in dismissing we do so without prejudice to any other issues concerning the adequacy of compliance with federal environmental requirements under NEPA and the Airport Development Aid Act.

The appeal is dismissed. No costs.


author: CRAVEN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Tyrone Rogers YOUNG, Appellant. UNITED STATES of America, Appellee, v. Wayne HUDSON, Appellant.
    Nos. 74-1327, 74-1658.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 7, 1975.
    Decided March 17, 1975.

      JeRoyd X. Greene, Richmond, Va. [Court-appointed counsel], (Greene & Poindexter, Inc., Richmond, Va., on brief), for appellant in No. 74-1327.
    Thomas R. Dyson, Jr., Alexandria, Va. [Court-appointed counsel], for appellant in No. 74 — 1658.
    David H. Hopkins, U. S. Atty. (Leslie H. Rowe, Special Asst. U. S. Atty., on brief in No. 74 — 1658), for appellee in Nos. 74^-1327 and 74-1658.
    Before CRAVEN, FIELD and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

At approximately 11:30 p. m. on July 16, 1973, George K. Bernstein was robbed at gunpoint and locked into the trunk of his automobile parked at the National Airport in Washington, D. C. As soon as the robbers left, Bernstein escaped by kicking out the rear seat of the car and immediately reported that he had been robbed by two and maybe three black males. Within minutes a roadblock at one of the exits of the airport netted three suspects in an automobile. The driver, Harris, related to the police that he was a Greyhound checker and had picked up his two passengers on the road near the scene of the crime, that he didn’t know them, and that they offered him $10 to take them into Washington. These two persons were identified as Tyrone Young, who was then wanted for bank robbery, and Wayne Hudson, who was wanted for parole violation. The officers learned this information by radio after they had put the appellants in the police car and were on the way to the police station for further interrogation. When they arrived at the police station Bernstein was there and immediately identified Young as one of the robbers and the one who held the gun on him, and so testified at the trial.

When stopped at the roadblock the appellants explained their nighttime presence at the National Airport by saying that they were there looking for work. Subsequently, officers found Bernstein’s briefcase and his wallet and a pistol close to where the appellants had been picked up in the car by Mr. Harris. Fingerprints of Young were also discovered on a document in Bernstein’s wallet.

I.

When the appellants were arrested at the roadblock the officers knew: (1) that an armed robbery had been committed moments before; (2) that the appellants were black males and within the vague description given by Bernstein; (3) that the culprits had fled the scene of the crime on foot and were apparently without motor vehicle transportation; (4) that appellants were without vehicular transportation, and instead of getting a cab at the terminal building had undertaken to hire a private car to carry them into Washington; (5) that appellants had been picked up by the driver close to the scene of the crime; (6) that appellants’ story of being at the airport without means of transportation and seeking work at 11:00 p. m. at night sounded unlikely. We hold the totality of the circumstances, including especially the brief time span from robbery to arrest, and proximity to the scene of the crime, constituted probable cause for arrest.

But if we assume otherwise, it should be noted that there were no “fruits” of the arrest other than Bernstein’s positive identification of Young at the police station. We think the connection is insufficiently proximate. At most there is a “but for” connection. It is purely happenstance that Bernstein was' taken to the police station rather than to the roadblock where he could have identified Young prior to arrest. Once the suspected culprits were known, Bernstein could just as well have viewed them as they left their homes the next day. There is no constitutional right not to be viewed. United States v. Quarles, 4 Cir., 387 F.2d 551 (1967). It is only when the arrest itself produces such pressure as to compel admissions or the production of contraband or the seizing of evidence that would not otherwise have been detected that the poisonous tree can be said to produce fruit. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We hold that an unlawful arrest does not per se make inadmissible positive identification testimony that is otherwise competent. See Vance v. State of North Carolina, 4 Cir., 432 F.2d 984, 990 (1970). Whether such testimony is admissible does not depend upon the validity of the arrest but upon whether the confrontation was “so unnecessarily suggestive and conducive to irreparable mistaken identification that [appellants were] denied due process of law,” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). That question is not presented to us — possibly because Bernstein did not identify Hudson, who was established by other evidence to be equally guilty.

II.

Appellant Young insists that the facts cannot sustain his conviction of violating 18 U.S.C. § 1201, entitled “kidnapping”. We agree that at common law “kidnap” meant to take and carry a person by force and against his will. But the title of the statute is not determinative, and it is clear that Congress has made unlawful much more than strict kidnapping as defined at common law. Indeed, the indictment does not charge common-law kidnapping. Instead, it charges that on or about July 16, 1973, at Washington National Airport, the appellants “did unlawfully seize and hold the person of George K. Bernstein for the purpose of assisting escape after commission of a felony.” This is an accurate statement of what was proved at trial and comes within the prohibition of the statute. Under § 1201 the “involuntariness of seizure and detention ... is the very essence of the crime . . ., [and] the true elements of the offense are an unlawful seizure and holding . . ..” Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). The 1972 amendment expanded the jurisdiction of the United States courts to include, in addition to cases involving interstate transportation of the victim, cases of seizing and holding any person within the special maritime and territorial jurisdiction of the United States. We hold the evidence amply supports the indictment, which is well within the prohibitions of the statute. 18 U.S.C. § 1201.

The other assignments of error lack sufficient merit to require discussion.

Affirmed.

      . 18 U.S.C. § 1201 (Supp.1975), in pertinent part, provides:
      (a) Whoever unlawfully seizes and holds for ransom or reward or otherwise any person when:
      (2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;