Fegler v. Brodie

• Citation: 574 P.2d 751
• Decision Date: 06 February 1978
• Docket Number: No. 4773,4773
• Parties: Thayne Eric FEGLER, an infant by his next friend, Harlan D. Fegler, Appellant (Plaintiff below), v. John Edison BRODIE, Appellee (Defendant below).
• Court: United States State Supreme Court of Wyoming

Page 751

574 P.2d 751

Thayne Eric FEGLER, an infant by his next friend, Harlan D. Fegler, Appellant (Plaintiff below), v. John Edison BRODIE, Appellee (Defendant below).

No. 4773.

Supreme Court of Wyoming.

Feb. 6, 1978.

John T. Pappas, Vidakovich, Pappas & Hooper, P. C., Lander, signed the brief and appeared in oral argument on behalf of the appellant.

Paul B. Godfrey, Godfrey & Sundahl, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

Plaintiff-appellant brought action in the district court seeking to recover money damages from defendant-appellee for injuries received by plaintiff, a two-year old, as he was running across Main Street, Lander, Wyoming, and was struck by defendant's motor vehicle, allegedly because of its negligent operation. The trial judge granted defendant's motion for summary judgment. Plaintiff appeals, presenting the single issue as to whether the trial court erred in the summary allowance of judgment for defendant. We will reverse.

According to a joint statement of facts, required by the court to be submitted for the record, the following is a summary of undisputed facts:

1. On the date of the occurrence, a car driven by the defendant collided with the plaintiff two-year old child. It was a hot, clear summer day during the time of the annual "Crazy Days" sales and celebration in Lander, Wyoming. On that day, the plaintiff's mother, accompanied by her mother-in-law, a four-months old son and the plaintiff, had come to town to shop. After going into various other stores, they went into the J. C. Penney store on the south side of Main Street.

2. Main Street is a four-lane section of State Highway 287 as it passes through downtown Lander. There are two lanes in each direction, separated by a four-foot wide raised concrete median strip, with parking on both sides of the street.

3. While in the Penney store, plaintiff told his mother he wanted a drink of water and disappeared. When his absence was noted, the women went looking for him.

4. At that time the defendant was proceeding alone in his automobile headed east on Main Street, at a rate of five to fifteen miles per hour. One or two car lengths behind was a vehicle driven by one witness Mitchell, accompanied by another named Epperson. As they approached the Penney store vicinity, Mitchell saw a child appear between parallel-parked cars in front of the store and run directly into the right front fender of the defendant's automobile. (See our analysis of the evidence in this regard later in this opinion. The evidentiary fact as here stated may or may not be correct.)

5. According to the defendant, the first thing he knew about the presence of the child was when he heard or felt a bump. He never saw the child until he at once stopped, got out of the car and observed plaintiff lying in the street, behind the right rear bumper.

6. There is some dispute as to whether the right front wheel went over plaintiff but none that the right rear wheel passed over his abdomen. The youngster suffered serious injuries.

7. The plaintiff was wearing a yellow shirt, yellow pants, yellow socks and blue tennis shoes.

8. The accident was investigated by a city police officer, who reported there was nothing wrong with the vehicle; there were no street defects; it was dry, and; the street was 46 feet wide. No contributing circumstances were noted.

9. A witness by the name of Green states that there was another vehicle in the right outside lane of Main Street, also headed east. According to that witness, its rear bumper was even with the defendant's car radiator. Green saw the boy dart in front of the other car, which missed plaintiff by about seven and one-half feet and the right front fender and wheel of defendant then hit plaintiff, throwing him to the south side of the street.

The following do not appear in the joint statement of facts but appear in the record in affidavit or deposition form.

1. When the plaintiff's grandmother was looking for him, as she came out of the Penny's store, she saw him running across the street "a toddler's run" going about as fast as he could for a two-year old. She did not see his collision with the car. All she saw was the "little bright yellow shirt" going into the street.

2. The witness Mitchell said the plaintiff was going "full blast", "full lick" when he hit the car. Mitchell expressed the opinion that he did not know how defendant could have "avoided hitting that little kid."

3. Defendant deposed that there was "worlds" of traffic on the street and big crowds of people up and down the street along with cars parked along the street at the site of the impact.

4. The police diagram showed the impact to be 26.6 feet from the south curb of Main Street.

5. After allowing for the width of parked cars, measurements were taken which indicate the plaintiff ran across an unobstructed portion of the street, 18.5 feet, before being struck.

6. Tests were made, indicating toddlers can run 18.5 feet in 3.5 seconds.

7. Computations show that the defendant could see plaintiff from a starting distance of 77 feet away from where they ran into each other, at 15 miles per hour.

The trial judge's order, after pretrial conference, points out that the plaintiff's specifications of negligence are: "a. Defendant's failure to keep a proper lookout. b. Defendant's failure to give warning as particularly alleged in the complaint." ¹ The terminal question then for the trial judge and now us is whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), W.R.C.P.

There are settled hypotheses, now of vintage quality, which lead us by the hand to a settlement of that question. We examine a motion for summary judgment in the same light as the district judge and treat it as though originally before us because we are acting upon the same materials in the record as he had. Shrum v. Zeltwanger, Wyo.1977, 559 P.2d 1384, 1387. We must look at that record from the vantage point most favorable to the party opposing the motion. Bluejacket v. Carney, Wyo.1976, 550 P.2d 494. The purpose of a motion for summary judgment is not to decide the facts but only determine if any real issue exists. Kover v. Hufsmith, Wyo.1972, 496 P.2d 908.

It is true the evidence in this case is not to any great extent in dispute but the central problem is whether the trial judge is privileged to say, as a matter of law, it demonstrates that the defendant is free of negligence. Has the trial judge encroached upon the function of the jury, which has been demanded?

The defendant was traveling at five to fifteen miles an hour on a street made busy by a local celebration, with much vehicular and pedestrian traffic. A two-year old child, dressed in yellow, going "full blast" for a toddler, comes from between parked cars, across 18.5 feet of street in full view of the defendant for 3.5 seconds, a period during which the defendant would travel some 77 feet, if the computations are correct. The child strikes the front bumper. Is the defendant guilty of negligence?

If that evidence is subject to conflicting interpretations, or reasonable minds might differ as to its significance, summary judgment is improper. 10 Wright and Miller, Fed.Prac. and Proc.: Civil, § 2725, pp. 498, 515. The cases in that reference cited supporting that proposition are in such volume that it is impracticable to catalog them here but we can by way of illustration set out the manner of expression used by some of the courts which clarify those grounds for denial of summary judgment. "Summary judgment should not be granted where contradictory inferences may be drawn from undisputed evidentiary facts." United States v. Perry, 9 Cir. 1970, 431 F.2d 1020, 19 ALR Fed. 537. "Even where the facts bearing upon the issue of negligence are undisputed, * * *, if reasonable minds could reach different conclusions and inferences from such facts, the issue must be submitted to the trier of fact." Marsden v. Patane, 5 Cir. 1967, 380 F.2d 489. "Evaluative judgment between two rationally possible conclusions from facts cannot be engaged in on summary judgment.' " Minnis v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., 8 Cir. 1975, 531 F.2d 850. "Summary judgment is not appropriate where the record, including documents and pleadings, establishes facts which give rise to contradictory inferences, one of which supports the party opposing the motion." United States v. Lange, 9 Cir. 1972, 466 F.2d 1021. A question of law arises in a negligence case on summary judgment consideration when only one conclusion can be drawn from uncontested facts; otherwise, it is a question of fact. Bayman v. Clearwater Power Company, Inc., 1976, 15 Wash.App. 566, 550 P.2d 554.

While this court has been on the brink of a statement of the rule, it has not had an opportunity to do so as clearly as here appears, where there is an obvious choice to be decided by a jury. We expressed the rule in Knudson v. Hilzer, Wyo.1976, 551 P.2d 680, and then later in Timmons v. Reed, Wyo.1977, 569 P.2d 112, but in those cases there were conflicts of evidentiary facts, rather than conflicting inferences from evidentiary facts, not at issue. In Forbes Company v. MacNeel, Wyo.1963, 382 P.2d 56, the rule was precisely stated in a summary judgment case but the summary judgment in a negligence case was affirmed on a different ground.

Though not in the posture of summary judgment, as here presented, this court has frequently applied the principle that when fair-minded persons may draw different opinions and draw different conclusions from the facts, the question of negligence or its...