Cederburg v. Carter
| Decision Date | 20 December 1968 |
| Docket Number | No. 3719,3719 |
| Citation | 448 P.2d 608 |
| Parties | Jerry CEDERBURG, Appellant (Defendant below), v. Joe CARTER, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Bard Ferrall, Cheyenne, for appellant.
Joe R. Wilmetti, Rock Springs, for appellee.
Before HARNSBERGER, C. J., and GRAY, McINTYRE and PARKER, JJ.
On trial to the court without a jury, judgment was awarded to Joe Carter for personal injuries sustained in an accident when Carter was riding as a guest in an automobile driven by Jerry Cederburg. Defendant-Cederburg has appealed.
Parties agree Carter was riding as a guest passenger in Cederburg's car and that plaintiff can recover only on a finding of gross negligence on the part of defendant, the Wyoming guest statute being applicable.
Points relied on by appellant for reversal are: (1) The judgment is not supported by substantial evidence of gross negligence; (2) the trial court erred in prohibiting certain cross-examination; and (3) the trial court erred in accepting the opinion of a 14-year-old boy as to the speed of defendant's car.
Point 1. Following the accident an insurance adjuster for the insurance carrier on the Cederburg automobile took statements at the hospital from Carter and from a companion, who also was riding as a guest in Cederburg's automobile at the time of the accident. Both statements contained language indicating no complaint about Cederburg's driving was made prior to the accident; that Cederburg drove like the rest of us-good; that he drove at about 50 miles per hour; and that he lost control of his Corvair car on a turn and hit a pole.
At the trial, both Carter and his companion testified Carter told Cederburg to slow down; that he (Carter) was too young to die and had babies to raise first. Also, Carter testified he had a conversation with Cederburg after the accident and Cederburg admitted he was going 70 miles per hour. Carter further testified he looked at the speedometer just before the curve and the speed was 70 miles per hour. The companion did not look at the speedometer. He testified Cederburg went at least 50 up Ridge Avenue; that we got to the curve and 'I guess we were just going too fast to make it and we didn't make it.'
Although appellant has not attempted to cite authority to support his Point 1, it seems to be his position that the trial court should have accepted the signed statements of Carter and his companion and disregarded their oral testimony. This position ignores that the signed statements were not under oath whereas testimony adduced at the trial was sworn to be the truth.
We consider it sufficiently axiomatic not to require authority for the proposition that it is within the prerogative of the trier of fact to decide what evidence is most dependable. As long as there is substantial evidence of gross negligence, we will not set aside a finding of such negligence by the trier. As stated in Zimberg v. United States, 1 Cir. (1944), 142 F.2d 132, 136, cert. den. 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573, a witness' unsworn statement inconsistent with testimony given in court only affects credibility of the witness.
In this particular case, we have no reason to believe the trial court relied solely on the trial testimony of Carter and his companion in deciding that Cederburg was grossly negligent. There was physical evidence of damage; and it was apparent that defendant, without other traffic or distracting influences, was driving fact enough that he was unable to make a curve. Also despite a street 36 feet 3 inches wide, defendant went outside the street to his left over the curb, striking a utility pole near the center of the front of the car with sufficient force to break the pole. These things tell a story of negligence to such an extent that a trier might reasonably find such negligence to be gross negligence.
As we have often said, ordinarily the question of negligence, whether slight or gross, is one of fact to be decided by the trier. Altergott v. Story, Wyo., 388 P.2d 196, 198; Severin v. Hayes, Wyo., 372 P.2d 1017, 1020; McClure v. Latta, Wyo., 348 P.2d 1057, 1062.
Point 2. Concerning appellant's Point 2, the transcript of testimony discloses the following transpired during recross-examination of the plaintiff:
'THE COURT: Objection sustained.'
At this point it appears counsel continued to insist on an answer from the witness. Whereupon the following took place:
(WHEREUPON, the witness was excused.)'
Appellant's contention seems to be that the court would not allow cross-examination of Carter...
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