B C P Corporation, a Corporation, Plaintiff-appellant, v. United States of America, Defendant-appellee, 415 F.2d 327 (9th Cir. 1969)

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US Court of Appeals for the Ninth Circuit - 415 F.2d 327 (9th Cir. 1969)

July 28, 1969

D. Thompson Slutes (argued), of Lesher, Scruggs, Rucker, Kimble & Lindamood, Tucson, Ariz., for appellant.

Lawrence Turoff (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY, BROWNING, and ELY, Circuit Judges.


Plaintiff brought suit under the Federal Tort Claims Act, 28 U.S.C. § 1346, to recover damages incurred when plaintiff's tractor-trailer attempted to pass a five-vehicle United States Air Force convoy on an Arizona highway. Plaintiff's principal theory was that one of the vehicles in the convoy negligently crossed the center line, forcing his tractor-trailer off the highway.

There was a sharp conflict in the evidence, both between witnesses and between statements made by each witness at different times. The district court found that the government vehicle had not crossed the center line, and that no other negligence occurred in the operation of the convoy. Although the able and forceful presentation of plaintiff's counsel demonstrates that the question is an exceedingly close one, after a careful examination of the record we are unable to say that the district court clearly erred in its evaluation of the conflicting testimony and that the court's findings are therefore not supported by substantial evidence. We affirm.