James A. Via, Appellant, v. United States of America, Appellee, 253 F.2d 950 (4th Cir. 1958)

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U.S. Court of Appeals for the Fourth Circuit - 253 F.2d 950 (4th Cir. 1958) Argued April 14, 1958
Decided April 15, 1958

James A. Via, pro se.

Henry St. J. FitzGerald, Asst. U. S. Atty., Alexandria, Va. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., on brief) for appellee.

Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and PAUL, District Judge.


The appellant, a civilian employee of the United States Army, engaged as a painter at the Officers Club at Fort Belvoir, Virginia, brought this suit under the Federal Tort Claims Act, 28 U. S.C.A. § 1346. His claim was for injuries to his heel, sustained in alighting from the rear of a truck which had transported him and a number of others to McKensie Hall, on the post.

Plaintiff's version is that when the truck came to a stop the driver announced, "This is the end of the line; all out." The tailgate of the truck was up, but the plaintiff says that he let himself down as gently as possible. Other witnesses gave a different story, and one whom the plaintiff summoned testified that before the driver had an opportunity to lower the tailgate, if he had seen fit to do so, the plaintiff "leaped" from the top of the tailgate to the road, thus injuring himself.

The District Judge accepted the version of the witnesses who testified that the plaintiff jumped, and commented that the opening of the tailgate was a simple operation which the plaintiff could have performed if he wished. The Judge declared that the plaintiff was aware of the hazard of jumping over the edge of the closed tailgate and willingly exposed himself to it. The Judge thereupon dismissed the case on the ground of contributory negligence.

We perceive no error in this ruling, and the judgment is