Hill v. Walters

• Decision Date: 12 March 1940
• Docket Number: 2137
• Citation: 55 Wyo. 334,100 P.2d 98
• Parties: HILL v. WALTERS
• Court: Wyoming Supreme Court

100 P.2d 98

55 Wyo. 334

HILL v. WALTERS

No. 2137

Supreme Court of Wyoming

March 12, 1940

APPEAL from the District Court, Johnson County; JAMES H. BURGESS Judge.

Action by Burton S. Hill, administrator of the estate of Amos J Thornber, deceased, against Fred J. Walters to recover damages for deceased's death as the result of an automobile collision. Judgment for defendant, and plaintiffs appeals.

Affirmed.

For the appellant, there was a brief by Hill and Hill of Buffalo Wyoming, and Wilson and Jackson of Burlington, Iowa, and oral argument by Mr. Burton S. Hill.

The question involved is whether plaintiff's intestate was guilty of contributory negligence as to bar a recovery from the defendant, who was guilty of negligence in the automobile collision. We believe that the testimony shows that defendant's car was completely on the wrong side of the road at the time of the collision. We do not believe that the evidence shows contributory negligence on the part of the deceased. In Hines v. Sweeney (Wyo.) 201 P. 165, this court held that an intervening agency, in order to supersede the original negligence of the defendant as the sole legal cause, must be independent of the latter and not set in motion thereby, and itself sufficient to produce the injury. In the case at bar, Dr. Thornber's negligence, if any, came after the commencement of defendant's negligence, as an intervening agency, and was not independent of the negligence of defendant. The law under such conditions is well stated in Walker v. Rebeuhr (Mich.) 237 N.W. 389; 45 C. J. 962; 4 Blashfield 481. The emergency rule cannot be applied where the situation of peril arises because of the driver's own negligence. A driver on the right side of the road has a right to assume that a vehicle approaching on the wrong side will turn to the proper side to avoid collision. 2 Blashfield Cyc. 62; O'Malley v. Eagan, 43 Wyo. 233; Albright v. Joplin Oil Co., 206 Mo.App. 412, 229 S.W. 829; Shaw v. Wilcox (Mo.) 224 S.W. 58. No collision would have occurred if defendant had remained on his own side of the highway. Dr. Thornber kept to the highway because of the borrow pit to his right, and was not negligent in doing so. Carruthers v. Campbell (Iowa) 192 N.W. 138; Wilker v. Vincent (Wash.) 252 P. 925; Thompson v. Schriber (Wash.) 2 P.2d 664; Candle v. Zenor (Iowa) 251 N.W. 69; Schuster v. Gillespie (Iowa) 251 N.W. 735. At the trial, defendant cited Section 72-203, R. S. in an attempt to show that the intestate was violating the law by an excessive rate of speed. However, defendant was driving at a high rate of speed, on the wrong side of the highway, and the accident would have occurred regardless of the intestate's speed. Burlie v. Stephens (Wash.) 193 P. 684; O'Malley v. Eagan, 43 Wyo. 233. Dr. Thornber's speed was not the proximate cause of the accident. Stobie v. Sullivan (Me.) 105 A. 714. The last clear chance doctrine should be applied in plaintiff's favor, if applied at all, for the reason that the defendant was guilty of the original negligence. Smith v. Gould (W. Va.) 159 S.E. 53; Chunn Case, 207 U.S. 302; McGowan v. Tayman (Va.) 132 S.E. 316; Mosso v. Stanton Company (Wash.) 134 P. 941; Rico v. Miranda, 289 U.S. 731. There is a line of decisions holding that plaintiff can recover, even though he could have extricated himself from his peril. Caudle v. Air Line R. Co., 163 S.E. 122; Tutweiler v. Lowery, 279 F. 479. The last clear chance doctrine may be pleaded generally. Kentucky Traction Company v. Wilbur (Ky.) 267 S.W. 1090; Bona v. Luchrman (Mo.) 243 S.W. 386; Indianapolis Company v. Marachke, 77 N.E. 945; Frankel v. Hudson (Mo.) 196 S.W. 1121; Traction Company v. Bowen (Ind.) 103 N.E. 1096; Mezzie v. Taylor (Conn.) 120 A. 871; Welch v. Railway Company (N. D.) 140 N.W. 680; Bassett & Co. v. Wood (Va.) 132 S.E. 700; Manlon v. Pac. Ry. Co. (Mo.) 16 S.W. 233; Kellyn v. Pac. Ry. Co. (Mo.) 13 S.W. 806; McGahey v. Ry. Co. (Nebr.) 129 N.W. 293; Riley v. Northern Pac. Ry. Co. (Mont.) 93 P. 948; Nobile Light & R. Co. v. Codik (Ala.) 100 So. 847. The courts take a liberal view of evidence admitted without objection, even if outside the issues. Clarechton v. Johnson (Wyo.) 41 P.2d 527.

For the respondent, there was a brief and oral argument by Burt Griggs of Buffalo.

Dr. Thornber was confronted by a sudden emergency and was not guilty of negligence, if he failed to adopt the best method of avoiding danger. This rule, of course, applies only where the emergency exists through no negligence on the part of the person seeking the benefit of the rule. Henderson v. Land, 42 Wyo. 369; Walker v. Rebeuhr (Mich.) 237 N.W. 389. But the evidence shows that Dr. Thornber saw the Walters car one thousand feet away, but made no attempt to control his car until it was within three hundred fifty feet of the place of accident. 5 Amer. Jur. 600, 601. The test of contributory negligence is whether the act constituting the negligence contributed to the cause of the injury. Robinson v. American Ice Company (Penna.) 141 A. 244; 19 S.W.2d 234; 3-4 Huddy, pp. 342, 351; Stuart v. Collins (Wis.) 229 N.W. 533. As to the duty of a driver in passing another's car, we cite 2 Blashfield, 44, 45, 59, 60, 125 and 42 C. J. 943. It is the duty of a driver to keep his car under control. 5 Amer. Jur. 598; Thrapp v. Meyers (Nebr.) 209 N.W. 238. One having the right-of-way must use due care. 21 A. L. R. 988; 37 A. L. R. 509; 47 A. L. R. 613; Garner v. Brown, 31 Wyo. 77; Christensen v. McCann (Wyo.) 282 P. 1061. The last clear chance doctrine is based upon the assumption that the plaintiff was negligent and as a result thereof, he has been placed in a position of danger, from which he cannot escape by the exercise of ordinary care; that the defendant is aware of the danger and has an opportunity to avoid the same, but fails to do so, resulting in plaintiff's injury. Anderson--An Automobile Accident suit, p. 799, 800; Smith v. Heibel (Mo.) 137 S.W. 70; Bragdon v. Hexter (Colo.) 282 P. 568; Marshall v. Olson (Ore.) 202 P. 736; Steele v. Brada (Ia.) 239 N.W. 538; 4 Blashfield Cyc. Auto L. & P., p. 536; Hensley v. Braden (Ky.) 915 S.W.2d 234. The last clear chance doctrine is inapplicable to the case at bar, as shown by the evidence. Solko v. Jones (Calif.) 3 P.2d 1028; Rasic v. Schultheiss (Cal.) 9 P.2d 550; 4 Blashfield Supp. 156; Erwin v. Morris, 51 P.2d 149; Landis v. Wick (Ore.) 59 P.2d 403; Rasmussen v. Traction Company (Calif.) 59 P.2d 617; Yellow Taxicab & Baggage Company v. New (Okla.) 40 P.2d 651; Thompson v. Collins (Wash.) 247 P. 458; O'Malley v. Eagan (Wyo.) 2 P.2d 1063. We direct attention to the opinion of the trial court, prepared after reviewing the evidence in the case.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

Another automobile collision is responsible for this litigation wherein in the district court of Johnson County Burton S. Hill, administrator of the estate of Amos J. Thornber, as plaintiff, and usually so mentioned hereinafter, sought a recovery of damages for alleged negligence against Fred J. Walters, as defendant, who also will be thus designated where his individual name is not used.

The negligence charged in plaintiff's petition was, to put it briefly, that the defendant on August 21, 1937, moving in a southerly direction, drove his car to the left of the center line on Federal Highway No. 16, about six miles northeast of the Town of Buffalo in Johnson County, Wyoming, when plaintiff's intestate was driving his automobile northerly on the right and easterly side of said highway, with the result that a collision between the two cars ensued, and Thornber suffered severe bodily injuries, which subsequently caused his death on October 24, 1937. The defendant's answer was in substance a general denial, alleged contributory negligence on the part of Thornber and that the latter was suffering from physical ailments of long standing, which were solely responsible for his demise, and that the collision aforesaid had no connection with it. Issues in the case were completed by plaintiff filing his reply thereto.

The cause was tried to the court without a jury, and plaintiff failed to succeed in the action, the court finding that although the defendant Walters was negligent in the operation of his car "the proximate cause of the accident, upon which this action was based, was the contributory negligence of the plaintiff's intestate, and by reason thereof plaintiff" could not recover. Judgment was accordingly rendered for the defendant. The plaintiff by direct appeal asks a review of the record by this court.

Summarized the facts developed on the trial, in view of the result reached by the trial court and which should be considered at this time, are:

Between five and six o'clock in the afternoon of August 21, 1937 the defendant was driving a Ford V-8 coupe on the highway above mentioned, in a southerly direction, from his ranch to the Town of Buffalo, aforesaid. He was at the time accompanied by a youth, one Marvin Mitchell, who had been employed on Walters' ranch for some time. The weather was clear, darkness had not yet come, and visibility conditions were excellent. Some six or seven miles from Buffalo Walters undertook to pass another car, possessing a foreign license plate, this car being pointed in the same direction in which he was traveling. As to whether this vehicle was standing still or moving the testimony was in conflict. The highway mentioned at the place indicated is straight, with about seven-tenths of a mile of straight, level expanse on either side of where Walters understood to go around the other automobile. Mrs. Thornber testified that both she and her husband first saw the Walters car nearly a mile distant. The testimony concerning the speed...