Brasel & Sims Const. Co. v. Neuman Transit Co.

Decision Date31 January 1963
Docket NumberNo. 3090,3090
Citation378 P.2d 501
PartiesBRASEL AND SIMS CONSTRUCTION CO., a Wyoming Corporation, Appellant (Defendant below), v. NEUMAN TRANSIT CO., Inc., a Wyoming Corporation, Appellee (Plaintiff below).
CourtWyoming Supreme Court

Robert R. Rose, Jr., Casper, for appellant.

J. Reuel Armstrong and K. W. Keldsen, Rawlins, for appellee.

Before PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

Neuman Transit Company, Inc., a trucker, sued Brasel and Sims Construction Company, a road contractor, for $9,367.90 damage occasioned on September 5, 1959, when plaintiff's Autocar tractor and Freuhauf tank semi-trailer upset and rolled over while its driver was attempting to negotiate a portion of a detour built by defendant. The vehicle, eight feet wide, fifty-nine feet, ten inches, long, was carrying gasoline and weighed 73,000 pounds gross.

The complaint alleged that the defendant carelessly and negligently constructed around, over, and across the principal road under construction a single-lane detour roadbed consisting of soft dirt fill insufficient to hold the weight and too narrow for the passage of vehicles thereon, that defendant knew said detour was unsafe and dangerous and failed to provide proper warning, and by reason of such negligence plaintiff was damaged. Defendant denied generally and alleged the negligence of the driver.

At the pretrial, it was agreed between the parties that the detour in question was constructed and maintained by the defendant.

The cause was tried to a jury which returned a verdict in the amount sought by plaintiff. When a motion for new trial and for judgment notwithstanding the verdict was denied, defendant gave notice of appeal.

Motion to Dismiss

Plaintiff has moved to dismiss the appeal on the ground that the notice was not filed within the time required by rule. The dates significant to the motion are: May 23, 1961, entry of judgment; May 29, defendant's motion for new trial and for judgment notwithstanding the verdict; June 29, order of court issued at defendant's written request extending to August 23 the time for determination of said motion; August 21, hearing on the motion, the court taking the matter under advisement; October 11, entry of order overruling defendant's motion for new trial and for judgment notwithstanding the verdict; November 8, filing of notice of appeal.

Plaintiff argues that under Rule 73(a), Wyoming Rules of Civil Procedure, an appeal must be taken within thirty days from the entry of judgment, and under Rule 59(f), Wyoming Rules of Civil Procedure, a motion for new trial if not determined within sixty days is considered denied, hence the judgment here was final against defendant on August 23 and the time for filing the notice of appeal expired within thirty days thereafter.

Defendant responds that it properly joined motion for directed verdict with a motion for new trial under the provisions of Rule 50(b), Wyoming Rules of Civil Procedure, that the court on August 21, at the time of the hearing on the motion, requested briefs, that counsel for both litigants presented no objection, agreed to furnish them, that this matter was first raised in plaintiff's memorandum of authorities on September 12, and that plaintiff has waived its right to object to any late filing.

The fact that the motion for judgment notwithstanding the verdict was here joined with the motion for new trial could not in the proper administration of justice be allowed to effect an extension of time for the appeal. This was not our intention at the time the rules were adopted and any such interpretation of the rules would permit an appellant by the addition of a motion for judgment notwithstanding the verdict to effect a delay. Nevertheless, a lack of clarity of Rule 59(f), Wyoming Rules of Civil Procedure, might well be contended because there is no provision as to what occurs after the continuance therein provided. In the instant situation both court and counsel at the time of the hearing of the motion apparently proceeded as if the continuance was to be effective until the matter was resolved by the trial court. Accordingly, the motion to dismiss must be overruled.

Sufficiency of the Evidence

Defendant contends that the verdict and judgment were unsupported by the evidence so that the court erred in denying (1) the motion for judgment at the close of plaintiff's case, (2) a similar one at the conclusion of all of the testimony; and (3) after judgment, the motion for new trial and judgment notwithstanding the verdict. In his argument counsel recognizes the rule of review frequently announced by this court and well stated in Fisher v. Robbins, 78 Wyo. 50, 319 P.2d 116, 117, 118:

'* * * it is the duty of this court to assume that the evidence of the successful party is true, leaving out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. * * *'

He urges, however, the application of the principle stated in Kester v. Wagner, 22 Wyo. 512, 145 P. 748, 749, where this court in discussing the trial court's duty under a statute which was the predecessor of Rule 59(a), Wyoming Rules of Civil Procedure, said:

"* * * Those courts ought to independently exercise their power, to grant new trials, and, with entire freedom from the rule which controls appellate tribunals, they ought to grant new trials whenever their superior and more comprehensive judgment teaches them that the verdict of the jury fails to administer substantial justice to the parties in the case. Whenever it appears that the jury have, from any cause, failed to respond truly to the real merits of the controversy, they have failed to do their duty, and the verdict ought to be set aside and a new trial granted.' [Dewey v. Chicago & N. W. R. R. Co., 31 Iowa 373.]'

This rule was reiterated and explained in Long v. Forbes, 58 Wyo. 533, 136 P.2d 242, 244, 158 A.L.R. 224, where it was said:

'* * * The findings of fact, however, are subject to review by the trial judge who, like the jury, has had the benefit of observing the demeanor and deportment of the witnesses. If he concludes that the evidence is insufficient to support the verdict, he should grant a new trial, under principles stated in Kester v. Wagner, 22 Wyo. 512, 145 P. 748. * * *'

However, essential background for the application of this rule includes this court's words in Cronberg Bros., Inc., v. Johnson, 29 Wyo. 11, 208 P. 446, 448, that when a trial judge has given the verdict his approval and endorsement by denying a new trial, the judgment will not be disturbed upon the ground that the jury was not entitled to believe certain testimony; and in Elliott v. Sloan, 38 Wyo. 276, 266 P. 1059, 1061:

'Trial courts have always been clothed with a large discretion in the matter of granting a new trial, and their action will not be disturbed in the appellate court unless that court can clearly and conclusively say that there was an abuse of that discretion. It will take a stronger case to warrant a reversal where a new trial has been granted than where it is denied. * * *' We consider then the present appeal in the light not only of the trial court's obligation to grant a new trial if the verdict is improper but also the latitude of that tribunal in making its determination.

In arguing that plaintiff did not prove the alleged negligence either directly or by inference, defendant seeks to eliminate any evidence concerning matters not covered by the complaint, contending that 'once specific allegations of negligence are relied upon, they must be proven and some other theory of the law * * * may not be relied upon.' We doubt if this point is significant, particularly in the light of the provision in Rule 15(b), Wyoming Rules of Civil Procedure, 'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.' See Lore v. Town of Douglas, Wyo., 355 P.2d 367, 370, and cases cited therein.

As to the obligation of defendant here, there was little disagreement. Defendant's superintendent testified that his company had the responsibility for the maintenance and the safety of traffic through and around the construction operation, including that of approaches, crossings, detours, and intersections; and both litigants rely upon Jackson v. W. A. Norris, Inc., 54 Wyo. 403, 93 P.2d 498, 503, 504, for the principle that a road...

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    ...933 (Wyo.1988). Fleetwood relies upon Blake; Matter of Estate of Potter, 396 P.2d 438 (Wyo.1964); Brasel & Sims Construction Company v. Neuman Transit Company, 378 P.2d 501 (Wyo.1963); and Board of Commissioners of Natrona County v. Casper National Bank, 55 Wyo. 144, 96 P.2d 564 (1939), in ......
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