Opinion
V. J. Rich (of Casey Power & Savage) Pittsburgh, Pa., and William C. Chase, Clearfield, Pa., for plaintiff.
Irwin A. Swiss, Asst. U.S. Atty., Pittsburgh, Pa., for the United States.
McVICAR, District Judge.
Findings Of Fact
This action came on for hearing, and after hearing and consideration thereof, the Court makes the following Findings of Fact, Conclusions of Law and Order:
1. The plaintiff in this action, John H. Collins is a citizen of the Commonwealth of Pennsylvania, residing in the Village of Hyde, Clearfield County, and had served in the United States Army sometime prior to December 18, 1945.
2. Corporal John Cushner, a Military Policeman, member of the United States Army, was at Hyde, having been assigned to the Clearfield, Pennsylvania area by his superior officer for a short tour of duty.
3. The duties of Corporal Cushner included locating members of the Army who were A.W.O.L., requiring no specified hours of work.
4. On the evening of December 18, 1945, Corporal Cushner and an associate Military Policeman were in the Hyde Hotel, having come to the hotel in an Army truck assigned to Cushner.
5. The plaintiff, John H. Collins and two companions, on this same evening of December 18, 1951 were in the Hyde Hotel, in the same room as Corporal Cushner and his party.
6. Collins and his two companions left the hotel, crossed the street to where the United States Army truck was parked.
7. Collins opened the cab of the truck, part of his body being inside the truck. His two companions were at the side and rear of the truck.
8. Corporal Cushner left the hotel, and seeing Collins and his two companions in and about the truck, shouted 'What are you doing there? Put up your hands.'
9. Corporal Cushner then drew and cocked his automatic and proceeded to the truck.
10. Collins and his two companions were lined up at gun point, when Collins made a sudden move for the purpose of seizing Cushner's gun.
11. Collins' hand or body touched the gun while they were wrestling, causing the gun to discharge, and resulting in the injury to Collins.
Conclusions Of Law
1. This cause is within the jurisdiction of this Court by virtue of the Federal Tort Claims Act, 28 U.S.C.A. 1346, 2671 et seq.
2. The plaintiff was guilty of contributory negligence, and his own negligence contributed to the injuries sustained.
3. The plaintiff has failed to sustain the burden of proving negligence on the part of the Military Policeman, John Cushner, or on the part of the defendant, United States of America.
Order
And now, to-wit this 9th day of February, 1951, it is ordered and directed that a judgment be entered for the defendant in the above-entitled action.