Brown v. Wyoming Butane Gas Company, Inc.

• Decision Date: 12 April 1949
• Docket Number: 2407
• Citation: 205 P.2d 116,66 Wyo. 67
• Parties: C. J. BROWN AND DENNIS CARRUTHERS, Plaintiffs and Respondents. v. WYOMING BUTANE GAS COMPANY, INC., a Wyoming Corporation, Defendant and Appellant
• Court: Wyoming Supreme Court

205 P.2d 116

66 Wyo. 67

C. J. BROWN AND DENNIS CARRUTHERS, Plaintiffs and Respondents. v. WYOMING BUTANE GAS COMPANY, INC., a Wyoming Corporation, Defendant and Appellant

No. 2407

Supreme Court of Wyoming

April 12, 1949

APPEAL from District Court, Natrona County; H. R. CHRISTMAS, Judge.

Action by C. J. Brown and Dennis Carruthers against Wyoming Butane Gas Company, Inc., for damages resulting for motor vehicle collision. From a judgment for plaintiffs for $ 6,108.16 the defendant appeals.

Judgment affirmed.

For Plaintiffs and Respondents the cause was submitted on the brief and oral argument of W. J. Wehrli of Casper, Wyoming.

POINTS OF COUNSEL FOR APPELLANT.

Where but one inference and conclusion may be drawn from the evidence, the question of proximate cause of an injury resulting from an automobile accident is for the court. O'Mally v. Eagen, 43 Wyo. 233.

It does not invariably give the vehicles to the right of the intersection the preference and did not intend to confer any monopoly upon them. The rights of persons on the streets are relative and though one is given the right-of-way by the law aforesaid, it remains his duty to exercise reasonable care to avoid collision with other vehicles. Garner v Brown, 31 Wyo. 77.

Where a custom contravenes the express provisions of a statute, the statute will prevail. Kohn v. Sacramento Electric Gas and Railway Co., 141 P. 626; Montana, State v Broadwater Elevator Company, 201 P. 687; Oregon Portland Fish Company v. Benson, 108 P. 122.

A custom cannot prevail against a well settled rule of law. Kansas, Clark v. Allaman, 80 P. 571; Oklahoma First National Bank v. Ellridge, 109 P. 62; Washington, Myers v. Exchange Bank, 164 P. 951.

One who violates the law of the road by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side of the road. If a collision takes place under such circumstances, the presumption is against the party who was on the wrong side. But the presumption is prima facie and has the effect only of casting the burden of justification of his position upon the man who was on the wrong side. Berry, Automobiles, 7th Ed. 2,477.

For Defendant Appellant the cause was submitted on the brief and oral argument of Edward E. Murane of Casper, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

It is the general rule that a known custom or usage may in a proper case be proved as bearing upon an issue of the existence or absence of negligence, and negligence may be predicated on the violation of a custom with respect to the side of the road occupied by vehicular traffic as well as upon the violation of a statute or ordinance regulating such traffic. Volume 1, Blashfield Cyclopedia of Automobile Law, Page 265, Section 13.

Where the issue is one of negligence in the performance or failure to perform some act, it is clear that evidence of the ordinary practice and custom which is generally followed in the performance of such act under the same or similar circumstances is competent. Burke v. John E. Marshall, Inc. (Cal.) 108 P.2d 738.

RINER, Chief Justice. KIMBALL, J. and BLUME, J. concur.

OPINION

RINER, Chief Justice.

This proceeding is before the Court upon a direct appeal from a judgment of the District Court of Natrona County entered upon the verdict of a jury in an action brought by C. J. Brown and Dennis Carruthers, plaintiffs in the District Court, respondents here, against Wyoming Butane Gas Company as defendant, now the appellant, to recover for damages incurred in a collision between plaintiffs' gas truck and semi-trailer tank equipment and defendant's Butane truck and semi-trailer outfit, also consisting of a truck and tank semi-trailer. The plaintiffs' unit was forty-two feet long, was loaded, carried five thousand gallons of gas and was proceeding in a southerly direction. It will usually be hereinafter referred to as the "gas tanker." The defendant's unit was thirty-five feet in length, was traveling empty and moving in a northerly direction. It will usually be mentioned subsequently as the "Butane tanker." The parties to the action may be conveniently designated as aligned in the trial court. The accident occurred when these two units undertook to pass each other on a bridge located approximately five to seven miles south of the Town of Glendo, Wyoming on Highway 87, March 27, 1947 about five o'clock in the morning, and when it was still dark. This bridge was forty-five feet long and the useable roadway width thereon was eighteen feet nine inches. The bridge had iron posts along each of its sides set in concrete shoulders which were raised above the useable roadway about a foot in height.

Plaintiffs' petition charged the defendant with negligence in four particulars. These were, to state them briefly: That the defendant's unit was on its left or wrong side of the highway at the time the collision occurred; that the brakes on defendant's unit were defective and insufficient; that the driver of the Butane tanker was traveling at such a fast rate of speed that he did not have proper control over his truck and trailer; and that defendant's driver violated a custom prevalent with operators of transports hauling liquid fuels upon the highway involved by giving a signal with his head lights, turning them off and on, thereby according plaintiffs' unit the right of way over said bridge, and then, disregarding the signal he had thus given, proceeded towards and upon the bridge with the consequent collision with and damage to plaintiffs' equipment.

Defendant's answer denied these allegations of negligence and pleaded as an affirmative defense that while its Butane truck was being driven in a safe, prudent and careful manner, the accident in question was caused by plaintiffs' driver's negligence in that he failed to keep his unit to the right of the center of the highway, the center of which was marked with a yellow line, but instead crossed over that line and collided with the defendant's equipment; that the brakes of plaintiffs' unit were defective and insufficient to control it; and that said driver did not have a proper control over his gas tanker due to the fast rate of speed he was traveling and the insufficiency of his brakes. Plaintiffs filed a reply in the nature of a general denial.

As above stated the cause was tried before the court with a jury in attendance. At the conclusion of the plaintiffs' case and also at the conclusion of the introduction of all the evidence in behalf of both parties, defendant moved for a directed verdict in its favor. Each of these motions was denied. The record shows an exception taken by the defendant to the denial of the first motion but apparently not to the second. The jury returned a verdict for the plaintiffs in the sum of $ 6,108.16 which had been shown by plaintiffs' repair bills stipulated by counsel to be the reasonable value and customary price thereof and for this amount the judgment in question was given.

We must examine the evidence in this case in the light of certain rules of law which have been invoked in this jurisdiction for many years and which accord with appellate practice in this country generally.

In Northwest States Utilities Co. vs. Brouilette, 51 Wyo. 132, 65 P.2d 223 the defendant presented a motion at the close of plaintiff's case for an instructed verdict in its favor; also a similar motion at the close of all the evidence in the case; for a judgment, notwithstanding the verdict; and finally a motion for a new trial. All these were denied, error was claimed on account of the adverse rulings, and this was said in response: "When a request is made to the court to wrest a case from the decision of the jury and direct the verdict or to enter judgment in opposition to the verdict, the principles of law upon which the decision of the court must be based are clear. In the first place, the credibility of the witnesses and the weight of their testimony are for the jury alone to determine. C. B. & Q. R. Co. v. Pollock, 16 Wyo. 321, 93 P. 847. Again, a motion for judgment at the close of plaintiff's case is in the nature of a demurrer to plaintiff's evidence, and admits its truth for the purpose of the motion. Boyle v. Mountford, 39 Wyo. 141, 270 P. 537. Further, where there is a substantial conflict in the evidence, it is improper for the court to direct a verdict. Weaver v. Richardson, 21 Wyo. 158, 129 P. 829. In 64 C. J., 432-433, the rule is stated in this language: "'By moving for a directed verdict, the maker of the motion admits the truth of whatever competent evidence the opposing party has introduced, . . . not only of all that the testimony proves, but of every material or ultimate fact which it tends to prove, . . . together with all fair and reasonable inferences or conclusions of fact favorable to the adverse party, fairly or reasonably inferable or deducible therefrom by a jury.' "In case of Willis v. Willis, 48 Wyo. 403, 429, 49 P.2d 670, it is said: "'In this connection (where it is claimed the judgment is not sustained by sufficient evidence) it must be borne in mind that the appellate court must assume that the evidence in favor of the successful party is true, leave 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.'" The judgment below was affirmed.

Substantially similar rules were announced in Blackstone vs. First National Bank of Cody, 64 Wyo. 318, 192 P.2d 411 where a motion for a directed verdict was sustained and the action of the trial court in so doing was upheld on appeal proceedings here.

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