Chandler v. Dugan, 2558
Decision Date | 09 December 1952 |
Docket Number | No. 2558,2558 |
Citation | 70 Wyo. 439,251 P.2d 580 |
Parties | CHANDLER, v. DUGAN. |
Court | Wyoming Supreme Court |
Loomis & Lazear, Cheyenne, for appellant.
Paul B. Lorenz, Cheyenne, for respondent.
This is a case where the plaintiff, Irene Chandler, was injured in a head-on automobile collision. Plaintiff was riding with her husband, Horace E. Chandler, the driver of one automobile which collided with an automobile driven by the defendant and appellant, Donald R. Dugan, at a street intersection in the City of Cheyenne. The case was tried to a jury resulting in a verdict in the sum of $18,715.15. A judgment was entered in that amount and defendant appeals.
Plaintiff sets forth in her petition that on the 16th day of December, 1949 at 9 o'clock P.M., on west 16th Street, in the City of Cheyenne, while riding in an automobile owned and driven by her husband, Horace E. Chandler, and proceeding easterly on west 16th Street and when about to turn north at the intersection of west 16th Street and Snyder Avenue, the defendant, who was driving an automobile in a 'westerly direction on west 16th Street collided with and struck the automobile being operated and driven by Horace E. Chandler in which plaintiff was riding.' It is alleged that the automobile being driven by the defendant at the time of the collision was operated by him in a careless, negligent, wanton, unlawful and reckless manner in his failing to have the automobile under proper and reasonable control so as not to endanger the life and property of plaintiff; in operating the automobile at a high, unlawful, dangerous and excessive speed, i. e., 50 miles per hour, greater than reasonable and prudent under the conditions there existing; in failing to keep the automobile under adequate and proper control; in operating the automobile at such excessive speed it could not be stopped within the assured clear distance ahead; in failing to keep a proper lookout for vehicles upon the street before him and in failing to discover the automobile driven by the plaintiff's husband in time to avoid the collision and resulting damage to plaintiff; when by careful, prudent action on his part he could have controlled his automobile so as to have avoided running into and injuring plaintiff after he discovered, or by the exercise of ordinary care, should have discovered that plaintiff and the automobile in which plaintiff was riding were in a place of danger; in failing to properly steer, control and stop the automobile and in violating the provisions of Sec. 60-501 W.C.S.1945 and Secs. 18-501-902-903 of the Ordinances of the City of Cheyenne governing the operation of automobiles. That by reason of the foregoing it is alleged the plaintiff suffered injuries and damages to the extent of $50,509.15.
To this petition defendant, by his Amended Answer, entered a General Denial except he admits the collision at the time and place alleged and that plaintiff was a passenger in the automobile owned by Horace E. Chandler, being driven by him in an easterly direction and that defendant Dugan was driving along west 16th Street at the time of the collision. For a second defense defendant alleges that plaintiff and Horace E. Chandler were cooperating in a joint enterprise at the time of the collision; that the sole and proximate cause of plaintiff's injuries was the negligence of her husband, Horace E. Chandler, in commencing a U turn some 75 or 100 feet west of Snyder Avenue on west 16th Street and after completing the U turn 'crashed headlong into the car of the defendant on the left-hand side of the street.' For a third defense it is alleged that the sole and proximate cause of the collision was the negligence of plaintiff in failing to look back along the highway when she could have seen the automobile of defendant approaching and in failing to notify her husband, the driver, so that he could avoid the collision.
For a fourth defense it is alleged that the negligent conduct of the driver, the husband, in making a U turn between intersections from a point off the highway onto and into the wrong lane of traffic was imputed to the plaintiff who was riding with him and who knew, or should have known, of her husband's proposed negligence and who was then and there charged with the duty of warning him and admonishing him not to continue in such a negligent manner. The reply to all defenses was a General Denial.
Defendant and appellant sets forth five specifications of error. The first four having to do with; (1) motion for directed verdict at close of plaintiff's case; (2) motion at close of all the evidence for directed verdict; (3) the entry of the judgment for $18,715.15; (4) motion for judgment notwithstanding the verdict, all of the foregoing on the ground that there was insufficient evidence and that the ruling of the court was contrary to law and the evidence. The fifth specification of error states that there was error in overruling defendant's motion for a new trial because of irregularity and misconduct of the prevailing party, that the damages were excessive, given under the influence of passion and prejudice; that there was newly discovered evidence material for the defendant which he could not with reasonable diligence have discovered and produced on trial.
Briefly stated, the evidence establishes the following facts and circumstances: Defendant was alone in his car driving west on west 16th Street at about 8:55 P.M. on December 16, 1949. 'I was going at a reasonable rate of speed--about 25 or 30 miles per hour.' As he came over the hill, which lies east of Snyder Avenue, he could see the road ahead and the intersection of the streets, west 16th and Snyder Avenue. He first saw the Chandler car as he entered the intersection of Snyder Avenue and 16th Street. Before that defendant hadn't seen a car in either lane of traffic. The first thing defendant saw,
'You, as a matter of fact, then know nothing about Mr. Chandler's course of driving?' 'No, I don't, I am sorry to say.' The only time defendant saw the Chandler car was just at the point of impact of collision. When asked, 'where do you think he came from?' he answered, 'That beats me.'
It is agreed that the point of collision is at a point 25 feet from the north curb line of 16th Street directly in line with an extension of the west curb line of Snyder Avenue, the cars having collided at that point. Other testimony shows that the point of impact on a north-south line is about 7 feet north of the center line of 16th Street. Photographs Exhibit 3 of plaintiff's car and Exhibit 2 of defendant's car both show more damage on the right side of each car than on the left side. The photographs indicate that the collision was head-on.
Harold Chandler testified that he was driving his own car, his wife, the plaintiff, beside him in the front seat and a Mr. Dewey sitting beside plaintiff. West 16th Street is approximately 63 feet wide. Chandler started driving from a point in front of a grocery store on the north side of west 16th Street, about 80 to 100 feet west of the intersection of Snyder Avenue and west 16th Street, turned left or south to south side of the center line of west 16th Street, driving east and then northerly with the intention of going north on Snyder Avenue at a speed of about 5 to 10 miles per hour, in low gear. Chandler states that when he started from the point mentioned he first saw, 'the blur of his (defendant's) lights * * * approximately 350 to 400 feet' away. The lights on both cars were on. He figured he had time to make the turn, held out his hand prepatory to turning three car lengths from the intersection. Chandler did not see any other cars or pedestrians and it did not occur to him there would be a collision until his wife hollered, 'watch out, that man is going to hit us.' He then threw on the brakes and 'in the collision I was practically stopped.' He didn't realize Dugan was going so fast. Dugan was coming from the east, headed west. Chandler estimated defendant's speed from 50 to 60 miles per hour. He saw the lights on defendant's car as defendant came closer. He states the collision happened as he was trying to get out of the way. Dugan was going very fast.
'
Chandler says he was either going very slow or was completely stopped at the time of the accident. After the accident Roy Palmer, a traffic officer of the Cheyenne police force, made a report of the accident and among other things stated: 'With regard to tracks caused by braking or skidding, there was a skid mark on the pavement 15 feet in length from its start to the front wheels of the Dugan car and there was no physical skid marks caused by the Chandler car.'
The day after the accident Chandler made a statement in writing to the police of Cheyenne in which he stated:
This statement was at variance with his testimony at the trial and in explanation Chandler asserts: That the statement made was incorrect, and that he (Chandler) did not tell the man who took the statement the matters set forth in the...
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