Downey v. Union Paving Co.

KALODNER, Circuit Judge.

Defendant seeks reversal of a judgment, obtained against it, on two grounds (1) that plaintiff was guilty of contributory negligence as a matter of law in that he did not have his car under such control that he could stop it within the range of his headlights; 1 and (2) that the road excavation into which the plaintiff’s automobile was driven was at that time under the control of an independent contractor and not the defendant, the primary contractor.

Viewed in favor of the plaintiff, as it must be, the evidence concerning the accident is as follows:

About 20 minutes…