Butcher v. McMichael

• Decision Date: 25 April 1962
• Docket Number: No. 3037,3037
• Citation: 370 P.2d 937
• Parties: Raymond H. BUTCHER, Appellant (Plaintiff below), United States of America, Intervener, v. Allen H. McMICHAEL and the Frontier Plumbing & Heating Company, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 937

370 P.2d 937

Raymond H. BUTCHER, Appellant (Plaintiff below) United States of America, Intervener, v. Allen H. McMICHAEL and the Frontier Plumbing & Heating Company, Appellees (Defendants below).

No. 3037.

Supreme Court of Wyoming.

April 25, 1962.

Samuel A. Anderson, Laramie, for appellant.

Guy & Phelan, Walter B. Phelan, Cheyenne, for appellees.

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

Mr. Justice McINTYRE delivered the opinion of the court.

The matter submitted for determination in this case is whether the undisputed facts are such as to make mandatory a finding that Allen H. McMichael, one of the defendants and driver of one of the motor vehicles involved in a collision, was negligent as a matter of law. We are also asked to review some of the instructions which were given by the trial court. With respect to these instructions, there is no indication that objections were made at the time of trial.

Action was brought in the District Court of Laramie County by Raymond H. Butcher for personal injuries and property damage sustained in a motor vehicle accident between Butcher and the defendant McMichael on December 18, 1959. The collision occurred on U. S. Hghway 30 approximately eight miles west of Cheyenne. McMichael was driving a one-half ton Chevrolet pickup belonging to Frontier Plumbing & Heating, one of the defendants, from Laramie to Cheyenne. Butcher was driving a van-type pickup truck for Interstate Butternut Bread, from Cheyenne to Laramie. Witnesses fixed the time of accident as around 7:00 a. m., while it was still dark. The highway was described generally as being very icy and slick, although McMichael himself testified that the roas was merely spotted with ice and snow and not too slick.

McMichael's explanation of the accident is that he was driving on his own side of the highway, just on the blacktop but next to the shoulder where the gravel is. He testified that he was traveling about 45 miles per hour and that he did not realize he was on ice until his vehicle started to skid. When the truck started to skid it went first to the right until it hit the gravel. Then the back end came around and the vehicle went down the highway out of control. Although McMichael says that he tried to keep straight down the road on his own side and also tried to get off into the borrow pit, the truck slid sideways along the highway crossing the center line and going down the wrong side. There is a small knoll or hill at the place of the accident, and McMichael testified that when he got to the top of it and before he knew what was happening the truck was skidding. He says that he did not see Butcher's vehicle until it was coming over the hill and about 600 feet away, which was after he had started sliding.

There was other evidence as to the length of skid marks, the point of impact, the position of the vehicles after the accident, the condition of the highway, and the nature and extent of damages. However, there was no substantial conflict with respect to the manner in which the accident happened, except that Butcher testified that as he approached the point of the accident he was blinded by approaching headlights. Believing that two cars were approaching abreast of each other, he flicked his lights and unsuccessfully attempted to get off of the road. McMichael was definite in his testimony to the effect that there was no other vehicle. There was no corroboration of Butcher's theory on the two cars.

The jury which heard the case returned a verdict in favor of the defendants, Allen H. McMichael and Frontier Plumbing & Heating Company. From this verdict and the judgment thereon, the plaintiff, Raymond H. Butcher, has appealed.

Contending that his own testimony is without contradiction to the effect that he was driving completely in his own lane, that he was blinded by approaching lights and that he attempted to get off the road, Butcher claims he must be found to be without negligence. As to the negligence of McMichael, the attorney for Butcher suggests excessive speed and also 'submits' that McMichael crossed over the yellow center line while passing another vehicle at night, then hit a foreseeable ice spot and lost control of his truck. Since the collision occurred on McMichael's left side of the road, Butcher argues that these facts constitute negligence as a matter of law.

It seems to be undisputed that the accident occurred in Butcher's lane of traffic, and we have no reason to believe that the jury considered him negligent. Regarding the negligence of McMichael, no reasons or authorities are advanced for holding that his rate of speed constituted negligence as a matter of law. This speed, as described by McMichael, was within the maximum legal limit, and the question of negligence as far as speed is concerned was clearly a jury question. Brown v. Wyoming Butane Gas Co., 66 Wyo. 67, 205 P.2d 116, 122; Merback v. Blanchard, 56 Wyo. 152, 105 P.2d 272, 276, 56 Wyo. 286, 109 P.2d 49; 5A Am.Jur., Automobiles and Highway Traffic, § 282, p. 403.

Concerning the contention that McMichael crossed over the yellow center line while passing another vehicle at night, this theory is in direct conflict with the testimony of McMichael and it also presented a jury question. No doubt the jury thought the accident happened as McMichael said it did.

Under Wyoming law, there is no actionable negligence where, without fault of the driver, a vehicle skids across the...