Arbenz v. Bebout
| Decision Date | 16 August 1968 |
| Docket Number | No. 3678,3678 |
| Citation | 444 P.2d 317 |
| Parties | John Charles ARBENZ, by Robert M. Seipt, His Guardian, Appellant (Plaintiff below), v. Ell D. BEBOUT, Administrator of the Estate of Arthur William Tanner, Deceased, Appellee (Arthur W. Tanner, defendant below). |
| Court | Wyoming Supreme Court |
Daniel P. Svilar of Boyer & Svilar, Lander, for appellant.
Alfred M. Pence of Pence & Millett, Laramie, for appellee.
Before HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.
John Charles Arbenz, a 19-year-old minor, through his guardian sued defendant for injuries received in an automobile accident occurring on Highway 130 west of Laramie about 6:30 p.m., November 2, 1966, alleging defendant's negligent operation in not exercising proper care and vigilance and in not maintaining a proper lookout or having his vehicle under control. Defendant answered, contending that he had not been negligent and that it was plaintiff's negligence which had caused the accident. The issue of liability was tried separately to the court without a jury and at the conclusion of plaintiff's case defendant moved for a judgment on the ground of plaintiff's negligence or contributory negligence being the proximate cause of the accident and injuries. The court granted the motion, finding inter alia that 'the collision between parties' cars and the resultant damages to the Plaintiff had been proximately caused by the joint negligence of both the Plaintiff and the Defendant.' Plaintiff has brought this appeal arguing that the trial court erred in finding Arbenz negligent, in finding that his tending to his disabled vehicle was the proximate cause of the injuries, and in failing to apply the doctrine of last clear chance to the facts.
With the exception of defendant's observations immediately prior to the collision, which we will mention hereafter, there is no disagreement concerning the facts. Arbenz, employed by the Mountain States Ranch School some thirty miles west of Laramie, had started driving an automobile and received his driver's license a few months before the date of the accident. On the afternoon of November 2 he had been sent to pick up ranch supplies in Laramie and while there after a cursory examination and without test driving had purchased a used 1956 two-door Nash automobile for the sum of fifty dollars and after dark started to drive it westerly to the ranch school. Some miles out of Laramie the engine sputtered and died, the car coming to rest in the right-hand lane of traffic on the 22-foot-wide paved road. He testified that he left the headlights and taillights burning, discovered that the transmission had locked in second gear, attempted to disengage it by rocking the vehicle back and forth so he could push it into the borrow pit, but was unable to do so. After again trying to disengage the gears, he got out, opened the hood, and started to get the gas line off the carburetor, assuming there was something either plugging the gas line or fouling the carburetor. When he noticed the reflection from the lights of defendant's Plymouth station wagon, which was traveling westerly toward him, he stepped back but did not get completely from under the hood when defendant's car struck the Nash in the rear. Plaintiff's vehicle came to rest approximately 208 feet from the point of impact, where it left two-foot skid marks following the collision; prior to these two marks, the defendant's vehicle left thirty feet of skid marks. Plaintiff himself was carried some forty feet down the highway. The investigating patrolman, who arrived some fifteen minutes afterwards, found one headlight and one taillight of the Nash still burning. The glasses on both taillights were broken. $Just prior to the accident, Mrs. Thomas Page, accompanied by her husband, approached the Nash from the west, and Page said he noticed the automobile standing in the road, apparently with one headlight, but later saw that Arbenz was standing in front of one of the headlights, looking under the hood. After they had gone past, Page looked back and saw that the Nash's taillights, although not especially bright, were on. Some 200 or 250 yards further they met the Tanner car, which dimmed on approaching. Page, apprehensive of an accident, looked around, saw the impact, and returned to the scene. He saw no other cars in the vicinity. Mrs. Page generally confirmed her husband's testimony.
Tanner testified that just after he met the Page vehicle he saw a car in the borrow pit turn on its lights and head westerly along the pit and then turn onto the road, driving a little faster than Tanner (forty to forty-five miles per hour), and that while he was watching that vehicle, for which he had dimmed his lights, he saw a dark spot in the road (plaintiff's car), slammed on his brakes, tried to jerk his vehicle left, but didn't make it.
The procedural aspect of the case is worthy of some attention. Plaintiff cites Fink v. Lewark, 70 Wyo. 150, 246 P.2d 195, for the principle that a motion for judgment at the close of defendant's case is in the nature of a demurrer to the evidence and admits its truth. Appellee counters by calling attention to the fact that the Fink case was decided under the provisions of § 3-3505, W.C.S. 1945, now superseded by the Wyoming Rules of Civil Procedure, but does not indicate under which rule or statute defendant was proceeding when he moved for judgment. This circumstance indicates the desirability of adherence to procedure allowed by the rules-in this instance of following Rule 41(b)(1), W.R.C.P., by moving 'for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.' However, we will here consider defendant's motion for judgment as having been an attempt to comply with the provisions of Rule 41(b)(1). This raises a question which has created some concern in different courts as to the requisite quantum and quality of the evidence justifying a court's granting of such a motion. 2B Barron and Holtzoff, Federal Practice and Procedure, § 919 (1961); 27 U.Chi. L.Rev. 94. We favor the disposition of the problem made in Rogge v. Weaver, Alaska, 368 P.2d 810, 813:
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