George Wesley Fooks, Appellee, v. James Glenwood Mister, Appellant, 363 F.2d 436 (4th Cir. 1966)

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US Court of Appeals for the Fourth Circuit - 363 F.2d 436 (4th Cir. 1966) Argued May 31, 1966
Decided June 22, 1966

Melvin J. Sykes, Baltimore, Md. (Foster H. Fanseen, Baltimore, Md., on brief), for appellant.

Jacob Rassner, New York City, for appellee.

Before SOBELOFF and BRYAN, Circuit Judges, and HEMPHILL, District Judge.


In this action to recover damages for personal injuries suffered by the plaintiff when he was struck by the defendant's automobile while crossing at an intersection of two Maryland public highways on his bicycle, the jury found for the plaintiff. The premise of the complaint, and apparently of the verdict, was the negligence of the defendant in driving through a red traffic light at the intersection.

The only errors assigned on this appeal are (1) the inadequacy of the evidence to establish the diversity of citizenship requisite to the jurisdiction of the District Court, and (2) the Court's refusal to submit to the jury the issue of the plaintiff's contributory negligence. The fault charged to the plaintiff was his failure to have lights on his bicycle, as required by Art. 66½, § 277 of the Maryland Code.

Our examination of the record discloses that the Court, although not expressly, in effect found there was diversity of citizenship. We think, too, that the evidence was sufficient to warrant this conclusion. Also we think the judge was correct in declining to charge the jury on contributory negligence. Lights on the bicycle would not have prevented or deterred the defendant from running through the red light, the sole cause of the accident.

As the proof amply supports the verdict, and there was no error of law in the trial, we approve the judgment entered for the plaintiff and now on review.