Arnold v. Jennings, 2734

• Decision Date: 15 May 1956
• Docket Number: No. 2734,2734
• Citation: 296 P.2d 989,75 Wyo. 463
• Parties: Wendell Dean ARNOLD, Plaintiff and Appellant, v. Lewis M. JENNINGS, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 989

296 P.2d 989

75 Wyo. 463

Wendell Dean ARNOLD, Plaintiff and Appellant, v. Lewis M. JENNINGS, Defendant and Respondent.

No. 2734.

Supreme Court of Wyoming.

May 15, 1956.

E. E. Birchby, Sheridan, for appellant.

William D. Redle, Sheridan, for respondent.

PARKER, Justice.

On July 7, 1954, plaintiff Wendell Dean Arnold asked Lewis M. Jennings to drive him from Sheridan, Wyoming, some four miles into the country to inquire about a job. On the return trip early on the morning of the 8th, the car driven by Jennings left the road and overturned, throwing plaintiff some 30 or 40 feet and injuring him. He sued defendant in the District Court of Sheridan County for $15,767.85, alleging that he was a 'guest passenger' and that the injuries occasioned to him were the result of defendant's 'gross negligent, willful and wanton act.' The court, acting without a jury, dismissed plaintiff's petition and made the following finding:

'The Court expressly finds that on July 8, 1954, the Plaintiff was riding as a nonpaying guest passenger in the automobile of the Defendant; that Defendant was driving his automobile and that the Defendant while so driving was blinded by the lights of an oncoming car, and that Defendant turned his Studebaker sedan sharply to the right to avoid colliding with said oncoming car and while so doing ran off the shoulder of the road, over an embankment, hitting a ditch and causing the Defendant's automobile to overturn.

'The Court further finds that Plaintiff has failed to prove by a preponderance of the evidence that such accident was caused by the gross negligence or by the wilful and wanton misconduct of the Defendant.'

Plaintiff has appealed, urging that the judgment is invalid for the reason that it is contrary both to the law and the evidence. He also insists that the court erred in certain rulings regarding the evidence and exhibits. Plaintiff made no claim that defendant was negligent on the trip out and states in his brief that the parties 'proceeded to drive out in a safe and prudent manner.' We therefore examine the record to determine what evidence was presented regarding defendant's negligence on the return trip and find the following testimony by plaintiff. 'He [defendant] drove away from the house fast. * * * he was driving so fast on the dirt road that I told him that it was a terrible road, he might hurt his car * * *. He was driving very fast. * * * [I warned] Mr. Jennings against speeding the car * * * probably 4 or 5 times. * * * I told Duke that he was going too fast to make that corner * * *. I do not know how fast he was driving * * *. He was driving too fast for the road * * *. I don't know how fast in miles per hour. I did look at the speedometer, too, but I wasn't thinking about how many miles an hour. I was just observing where the hand was and how fast we were going. * * * [It was] at an angle; about one o'clock. * * * he [was] on the wrong side of the road going around that corner. * * * then we started back and come along the center line.'

Opposed to this testimony was that of defendant that plaintiff 'didn't * * * [caution me] * * * about the speed * * * never showed any nervousness at all in coming back on the return trip. * * * on the corner prior to the corner where the accident occurred * * * [I was going] approximately 35, 40 miles an hour. * * * as we approached the curve I saw these car lights coming and he had bright lights on and was on my side of the road, and I got over when I seen he was going to hit me headon. I swerved to the right and I couldn't get it back on the road.'

The witness, Howard Heiduck, a highway patrolman, testified that from his examination he 'thought it [defendant's car] had been traveling at a fast speed. * * * I have made that curve at between 45 and 50 miles an hour and found no swerving of the car and no difficulty in keeping it on my own side of the road. * * * [I] never saw any sign or track of any kind which would in any way indicate * * * that Mr. Jennings' car had ever been on the wrong side of the center line * * *.'

While the foregoing is not a complete resume of all the testimony relating to the alleged improper acts of the defendant, it is representative of the entire evidence on the subject and incorporates the strongest proof adduced by plaintiff. Since plaintiff did not urge willful or wanton misconduct on the part of defendant, he apparently relies solely on his proof of defendant's gross negligence which under Hawkins v. L. C. Jones Trucking Co., 68 Wyo. 275, 300, 232 P.2d 1014, 1023, is defined as that:

'* * * 'indifference to present legal duty and * * * utter forgetfulness of...