Opinion
Civ. A. No. 2179.
April 29, 1954.
Stuart Rothman, Solicitor, William A. Lowe, Chief of Trial Litigation, U.S. Dept. of Labor, Washington, D.C., Jeter S. Ray, Reg. Atty., David V. Manker, Atty., Nashville, Tenn., for plaintiff.
H.H. Mc Campbell, Jr., Knoxville, Tenn., for defendant.
This is an action for injunction restraining defendant from violating 29 U.S.C.A. §§ 215(a)(2) and 215(a)(5), the violations alleged being failure to pay the minimum wage for a 40 hour week and time and one-half the regular wage for hours in excess of 40 per week and failure to keep records, as required by the Fair Labor Standards Act.
Plaintiff alleges that defendant is engaged in the use of material shipped to its place of business in Knoxville, Tennessee, from outside the State for the manufacture of asphalt products which are sold to the State of Tennessee, to Knox County, to the City of Knoxville, and to the Louisville and Nashville Railroad; that the purchasers have used and are using asphalt products to maintain, repair and reconstruct roads and rights of way and other facilities which are instrumentalities of interstate commerce, and that defendant's 11 employees (clerks, watchmen, truck drivers, pump men, and laborers) accordingly are "engaged in interstate commerce and in the production of goods for interstate commerce."
Defendant admits that those of its employees who receive and handle material shipped to this defendant from states other than the State of Tennessee, are engaged in activities which by their nature place such employees in the category of "engaging in interstate commerce."
Defendant denies that it has violated the sections relating to wages, hours, and the keeping of records. This denial is based upon the contention that the employees sought to be brought under the Act by the plaintiff are not covered by the Act.
The issue, as stated in the pretrial order filed on September 11, 1953, is: "Do defendant's activities bring it and its employees within the coverage of the Fair Labor Standards Act?"
Defendant admits that if the employees involved in this suit are covered by the Act that it has not complied with the wage and hour and record keeping regulations of the Act.
Defendant produces a product known as emulsified asphalt which is used as a binder for material used in the repair and maintenance of streets and highways. More than 85% of the material produced is sold by defendant to various cities, towns and counties within the local marketing area near defendant's plant, which is located in Knoxville, Tennessee. The purchasers of this material obtain it at the defendant's plant site in Knoxville and take it to job sites within the State of Tennessee, where it is used with other road material to repair and maintain the streets and highways under the jurisdiction of the agencies of local government. Something less than 1% of this material produced by the defendant during the period involved in this litigation was sold to the Louisville and Nashville Railroad, which used it for grade crossing maintenance and repair.
The case was tried primarily on stipulations, with some additional testimony given by Mr. B.C. Barker, Director of Public Service of the City of Knoxville, Tennessee, and by Mr. Frank Whitfield, President of the defendant corporation.
During the period involved in this suit, namely, from January 25, 1950, to May 18, 1953, defendant sold to the City of Knoxville and to Knox County 69% of its output, which was transported by the purchasers to job sites where it was used to patch, repair and maintain various roads, streets, and highways in Knoxville and Knox County, Tennessee, including, but not limited to, the various roads set forth in the stipulation.
Paragraph 3 of the stipulation shows that these roads are regularly used by motor trucks, and over-the-road tractor-trailer type motor transport trucks operated by numerous common carriers of freight, including a large number of large truck lines, some of which are named in paragraph 3 of the stipulation, and that other trucks used by common, contract, and private carriers engaged in transporting goods in interstate commerce daily travel on, over and across the roads, streets and highways named in paragraph 2 of the stipulation.
Paragraph 4 stipulates that motor vehicles transporting the United States mail daily travel on, over and across the various roads, streets and highways referred to in paragraph 2.
Paper Mill Road, one of the roads named in paragraph 2, is an officially designated truck route for traffic on U.S. Highways Nos. 11 and 70, and several highway maintenance men spend about ten days each month patching, repairing and maintaining this Paper Mill Road with emulsified asphalt paving material produced by the defendant and its employees.
During the period involved in this litigation, and until September 1953, another road named in paragraph 2 was marked with "truck route" signs similar to those appearing on Paper Mill Road.
In paragraph 7 of this stipulation, a number of large business institutions located in Knoxville and Knox County, Tennessee, are named and it is stated that they are engaged in interstate commerce and in the production of goods for interstate commerce, as defined by the Act.
In paragraph 8, many of the roads, streets and highways referred to in paragraph 2 are in daily use by common, contract and private carriers, including those referred to and named in paragraph 3, in transporting to and from the establishments referred to in paragraph 7, goods received from and consigned to various states other than Tennessee.
In paragraph 9, it is stipulated that motor trucks using U.S. Highway No. 25-W from out of state points north of Knoxville to points on U.S. Highways Nos. 11 and 70 south and west of Knoxville, and, similarly, motor transport trucks using U.S. Highways Nos. 11 and 70 from out of state points south and west of Knoxville to points on U.S. Highway No. 25-W north of Knoxville daily avoid travelling into and through downtown Knoxville (with a resulting reduction of 8.8 miles) by the use of a by-pass or cut-off route over Ball Camp Pike, Ball Road, Schaad Road and Lovell Road extending 13.1 miles between a point on U.S. Highway No. 25-W at or near Aeroplane Service Station (8.3 miles from downtown Knoxville) to a point on U.S. Highways Nos. 11 and 70 at the intersection of Lovell Road and the Kingston Pike (13.6 miles from downtown Knoxville). roads which intersect each other at right angles. Steilacoom Boulevard runs generally east and west and Bridgeport Way runs generally north and south. Both roads are surfaced with what is commonly described as "black top" pavement. The pavement of each road is two-laned with a center stripe and at the time of the accident there was a red blinker stop light hanging above the center of the intersection. Highway signs require traffic on Steilacoom Boulevard to stop before entering the intersection and a yellow blinker caution light is provided for traffic on Bridgeport Way.
At the time of the accident plaintiffs were the owners of a 1951 Ford Station Wagon which was being operated by plaintiff wife southward on Bridgeport Way at about the hour of 5:45 p.m., at which time it was fully daylight and the weather conditions were good with clear visibility and dry roadway.
Defendant's vehicle, an Air Force ambulance, was an authorized emergency vehicle as defined by state law, RCW 46.04.040, properly equipped as required by law, and actually responding to an emergency call within the purpose for which it was authorized, having been dispatched to proceed immediately from McChord Air Force Base to the scene of an airplane crash in the Lakewood suburbs of Tacoma, Washington, to pick up the injured at the scene of the crash. One of the injured picked up by the ambulance was in a condition calling for immediate medical attention and required rushing the patient to the base hospital. In order to reach the hospital as soon as possible the ambulance, driven by A/2c Billy R. Minish, was proceeding in an easterly direction along Steilacoom Boulevard, approaching its intersection with Bridgeport Way.
The evidence establishes that the sound of the ambulance siren was loud and clear and was sounding continuously for a considerable distance while approaching the intersection, and that the emergency red light of the ambulance was flashing constantly while it proceeded eastward on Steilacoom Boulevard at a speed of approximately 65 miles an hour. As the driver neared the intersection the ambulance speed was reduced from 65 miles to about 35 miles an hour. The ambulance was required to pass to the left of several vehicles which had stopped on Steilacoom Boulevard to the west of the intersection at the approach of the ambulance and sound of siren. The driver of the ambulance, having checked the clearance on the right and the view on his left unobstructed for a distance of approximately 30 to 40 feet, with siren still sounding and red light still flashing, proceeded to cross the intersection without stopping and had reached a point just beyond the center of the intersection when the Ford Station Wagon, proceeding southward on Bridgeport Way, entered the intersection and struck the left side of the ambulance, causing the ambulance to swerve to the right and strike a utility pole, snapping the pole off at the base, and causing extensive damage to the front and left side of the ambulance.
Due and proper warning was being given of the ambulance's approach to the intersection and plaintiff driver was negligent in not hearing or heeding the siren and in not looking out for traffic on Steilacoom Boulevard when she came within the unobstructed view of such traffic a reasonable distance from said intersection and she either negligently failed to see or hear the approaching ambulance or negligently gave no heed thereto and continued on through the caution light to cross the intersection irrespective of the oncoming, fully visible ambulance, the sounding of its siren and the flashing of its red light.
The evidence establishes that the ambulance driver was exercising reasonable care at the time and place in question. On approaching the intersection he made a reasonable reduction of speed by application of his brakes, and in passing to the left of the cars standing at the intersection had the problem of looking out for cars coming from the obstructed view to his right. Having given due warning of his approach the ambulance driver had the right to assume that the plaintiff driver, along with the drivers of other cars, would pull over to the right of the road and remain parked while the emergency vehicle passed. Even if the ambulance driver had seen the Ford Station Wagon approaching the intersection he would have had the right to assume that the driver would slow down or stop her car without proceeding into the pathway of the ambulance. State of Washington v. United States, 9 Cir., 194 F.2d 38.
The sole and proximate cause of the accident was the failure of the plaintiff driver to yield the right of way to the defendant's ambulance, an authorized emergency vehicle, which was then and there proceeding with due care and warning on an emergency mission. Plaintiffs' complaint dismissed and judgment awarded to defendant on its cross-complaint for damages to the ambulance in the sum of $1,172.02.