Berry Refining Co. v. Pinsky

• Decision Date: 17 July 1968
• Docket Number: 3642,3640,Nos. 3637,s. 3637
• Citation: 443 P.2d 521
• Parties: BERRY REFINING COMPANY, a Corporation, and Roy Rowland, Appellants (Defendants below), Butane Power & Equipment Company, a Corporation, and Marion A. Wales (Defendants below), v. Shirley PINSKY, Appellee (Plaintiff below). BUTANE POWER & EQUIPMENT COMPANY, a Corporation, and Marion A. Wales, Appellants (Defendants below), Berry Refining Company, a Corporation, and Roy Rowland (Defendants below). v. Shirley PINSKY, Appellee (Plaintiff below). Shirley PINSKY, Appellant (Plaintiff below), v. BUTANE POWER & EQUIPMENT COMPANY, a Corporation, and Marion A. Wales, Appellees (Defendants below), Berry Refining Company, a Corporation, and Roy Rowland (Defendants below).
• Court: Wyoming Supreme Court

Page 521

443 P.2d 521

BERRY REFINING COMPANY, a Corporation, and Roy Rowland, Appellants (Defendants below), Butane Power & Equipment Company, a Corporation, and Marion A. Wales (Defendants below), v. Shirley PINSKY, Appellee (Plaintiff below).

BUTANE POWER & EQUIPMENT COMPANY, a Corporation, and Marion A. Wales, Appellants (Defendants below), Berry Refining Company, a Corporation, and Roy Rowland (Defendants below). v. Shirley PINSKY, Appellee (Plaintiff below).

Shirley PINSKY, Appellant (Plaintiff below), v. BUTANE POWER & EQUIPMENT COMPANY, a Corporation, and Marion A. Wales, Appellees (Defendants below), Berry Refining Company, a Corporation, and Roy Rowland (Defendants below).

Nos. 3637, 3640, 3642.

Supreme Court of Wyoming.

July 17, 1968.

Edward E. Murnane of Murane, Bostwick, McDaniel & Scott, Casper, for appellants, Berry Refining Co. and Roy Rowland.

Ernest J. Goppert of Goppert & Fitzstephens, Cody, H. F. Joffe of Scott & Joffe, Worland, Heller & Morris, Chicago, for Shirley Pinsky.

Houston G. Williams of Wehrli & Williams, Casper, for appellants, Butane Power & Equipment Co. and Marion A. Wales.

Before HARNSBERGER, C. J., and GRAY, McINTYRE and PARKER, JJ.

PER CURIAM.

This litigation culminating in three appeals, Nos. 3637, 3640, and 3642, to be discussed herein consecutively, arose out of an automobile-truck accident occurring on August 7, 1959, about 8:30 p.m. on state secondary (Thermopolis to Cody) highway 120, approximately twenty miles north of Thermopolis. In the area of the accident, the road runs generally north and south. Plaintiff was a passenger in the 1959 Rambler automobile owned by her father, Dr. Pasternak. Several days earlier he had had a flat and the tire had not been repaired. Late on the afternoon of August 7 when the left-front tire of the Rambler went down the car was stopped in the center of the south-bound lane on the west-traveled portion of the 24-foot-wide, two-lane, oiled highway, and the left-front wheel was jacked up and left standing on the jack. Where the Rambler was stopped there was a solid line going up the hill to the south indicating no passing for traffic going southerly uphill toward Thermopolis. The borrow pit on each side of the road was approximately five and one-half feet deep, the width of the shoulder approximately four feet on each side. Dr. Pasternak was driven to Thermopolis by a passing motorist to take the tire for repairs, and his 28-year-old daughter remained in the car during his absence. The Rambler's lights were either turned on before the doctor left or later by his daughter, who at dusk placed a battery-powered lantern on the shoulder of the road ten to fifteen feet from the car with the beam shining a little above its trunk. (After the accident, a highway patrolman following Dr. Pasternak into Thermopolis observed that the right-rear taillight, not broken by the collision as was the left, was quite dirty, and testified that in pulling up behind the Rambler with his headlights on the car it was hard to determine that the taillight was on.) Sometime after dark the doctor returned to the car in a Berry Refining Company truck, driven by Roy Rowland. Shortly after the Berry company truck stopped and let the doctor out, a truck owned by Butane Power & Equipment Company, driven by Marion A. Wales and traveling in a southerly direction toward Thermopolis on the west portion of the highway, ran into the rear of the Rambler, injuring plaintiff, who on October 25, 1962, filed suit for $250,000 against the Butane company, the driver Wales, the Berry company, and the driver Rowland, service being made on the first three but not on Rowland. Following the trial of the case by jury in November 1964, verdict was rendered in favor of the Butane company, Wales, and the Berry company, and plaintiff filed a motion for new trial, which was granted. Thereafter, service was made on Rowland, and on a change of venue the case was again tried to a jury, which rendered a verdict against the Berry company and Rowland in the sum of $50,000 but found in favor of the Butane company and Wales, judgment being thereafter entered in accordance with the verdict for the amount of $40,500 (plaintiff having theretofore received from her father the sum of $9,500 for a covenant not to sue him on any claim arising out of the accident). Subsequently plaintiff moved for a new trial of the matters at issue between her and the Butane company and Wales, but the motion was denied.

The Berry company and its driver Rowland in Case No. 3637 appeal from the final verdict and judgment entered against them and also claim error in the granting of the second trial. In Case No. 3640 the Butane...