Chapman v. Ewing

• Decision Date: 29 August 1933
• Docket Number: 1804
• Citation: 46 Wyo. 130,24 P.2d 687
• Parties: CHAPMAN v. EWING
• Court: Wyoming Supreme Court

24 P.2d 687

46 Wyo. 130

CHAPMAN v. EWING

No. 1804

Supreme Court of Wyoming

August 29, 1933

Rehearing Denied October 17, 1933, Reported at: 46 Wyo. 130 at 141.

ERROR to the District Court, Converse County, C. O. BROWN, Judge.

Action by Mrs. Sylvia Ewing against Vernon Chapman. Judgment for Plaintiff, and Defendant brings error.

Affirmed on condition.

For the plaintiff in error, there was a brief by Durham & Bacheller of Casper, Wyoming, and oral argument by E. Paul Bacheller.

Defendant in error failed to establish the allegations of her petition by proof. Proof of the accident is not proof of negligence nor will it justify an inference of negligence, McMillan v. Keck, (Colo.) 260 P. 1079; Leahy v. Detroit M. &amp T. S. Ry. 240 F. 82; Southern Railway Company v. Derr, 240 F. 73; Chesapeake & Ohio Ry. Co. v. Rogers (Ky.) 237 S.W. 18; Ash v. Childs Dining Hall Co., 120 N.E. 396; Massachusetts Bonding & Insurance Co. v. Park, 163 N.W. 891; Orris v. Chicago, Rock Island, Pacific, 214 S.W. 124; Tsiampris v. Union Pacific Railway, 176 N.W. 366; Chicago, Rock Island & Pacific v. Tate, 156 P. 1182; Mardo v. Valley Smokeless Coal Co., 123 A. 779; Memphis St. Railway Co. v. Cavell, 187 S.W. 179; Texas Electric Co. v. Crump, 212 S.W. 827. No attempt was made to establish misconduct. Negligence was not established by the proof. Defendant in error knew that appellant intended to back his car and by remaining in an unsafe place she should be charged with contributory negligence. The verdict of the jury was excessive. Chicago Northwestern Railway Co. v. Ott, 237 P. 238, 243.

For the defendant in error there was a brief and oral arguments by W. O. Wilson of Cheyenne and Edward E. Murane of Casper.

The allegations of the petition as to negligence are sufficient. Bliss on Code Pleading, page 327, 456. The appellate court will not disturb a judgment based upon conflicting evidence, if there be evidence to sustain the judgment. C. B. & Q. R. R. Co. v. Pollock, 16 Wyo. 321. As to the amount of the verdict, we believe this case is to be distinguished from that of Chicago & Northwestern Railroad Company v. Ott, 33 Wyo. 200. In the Ott case, the verdict was special, in this case the verdict was general; no one can tell what amount was allowed for pain and suffering, expenses incurred, or time lost, or what was allowed for future earnings. There are four distinct items of damage in the verdict. The rule is laid down by this court in Hall Oil Company v. Barquin, et al, 33 Wyo. 92. The case was tried in Converse County on change of venue. All parties were strangers to the Jury. The evidence was conflicting but the verdict should not be disturbed. Boyle v. Mountford, 39 Wyo. 150.

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

OPINION

RINER, Justice.

By this proceeding in error, Vernon Chapman, the defendant below, seeks review of a judgment rendered by the District Court of Converse County, Wyoming, in an action brought against him by Mrs. Sylvia Ewing, as plaintiff, in the District Court of Natrona County, and removed on change of venue to the county first above mentioned.

The action is one for alleged negligence on the part of Chapman in the operation of an automobile owned by him, whereby plaintiff was injured. Her petition states that the "defendant's car was parked parallel and along side of several other cars at the Lions Recuperation Camp on Casper Mountain in Natrona County, Wyoming; that at said point and time mentioned said defendant Vernon Chapman started to back his car out and did back his car out and away from said parking space, and operated said automobile in a careless, incompetent and willfully negligent manner in the following respects, to-wit:

First. That he did not have absolute or any control over said motor vehicle; that he did not look to the front or to the side of his said motor vehicle but turned his head and was attempting to look out of the window of said automobile

Second. That he drove said motor vehicle without proper regard for the rights of other persons.

Third. That he failed to give any warning by horn or otherwise of the presence and approach of said automobile then and there operated and driven by him."

Defendant's answer, after admitting the parallel parking of his car with others, and that it was backed by him from the place where it had been parked, was a general denial of the allegations of plaintiff's petition. A jury trial was had, resulting in a verdict for the plaintiff in the sum of $ 7,129 upon which the judgment complained of was entered.

The facts material to be considered, as we view them, are substantially these: On the evening of July 22, 1931, the defendant with his wife, and child about ten months old, the plaintiff, and many other people, were attending a picnic on Casper Mountain, some distance from the City of Casper, Wyoming, at what was known as the Lions Recuperation Camp. The defendant parked his automobile to the north and some distance from a building designated as the "Administration Building" of the camp, in a position parallel with other cars also located to the north of said building but on ground somewhat east of defendant's car. The ground in front of the building, aforesaid, sloped considerably to the north. There appear to have been no cars parked in the immediate vicinity of defendant's car, either to the west or north of it.

Between 8:30 and 9:00 o'clock on the evening mentioned, the defendant desired to take his family home to Casper, some nine miles distant. Plaintiff, who was conversing with them at the time, walked along in their company until they all came to defendant's car. The Chapman family entered it, the defendant taking his seat at the steering wheel of the automobile, his wife sitting beside him on the front seat of the car with the child on her lap. The plaintiff, standing on the ground close beside the front door of the car, which was of the sedan type, continued the conversation through the opening made by lowering the glass part of the door. Finally, the defendant, according to his testimony, said that he would see plaintiff Friday concerning some work she desired done, and then, as the plaintiff related the occurrence on the witness stand: "Well we had no kind of salutation and didn't honk his car, the car moved and seemed to start towards me and as he did the wheel knocked me down and wheel run over my foot." The defendant says in his testimony that, after making the remark aforesaid, he put his car in reverse and backed about eight or ten feet to the rear or until the left front wheel of his car was about even with the rear wheel of the car parked adjacently and to the east of it, and then he cramped the rear of his front wheels to the right in order, as he states, "To keep from backing towards the crowd and to keep from backing down hill to a rough and stony piece of ground and to hit the road in such a way as to reach the road to town." He testified, also, that plaintiff walked along with the car some distance as it moved before he turned the front wheel. The fact of her doing so, however, is in dispute. As the car moved to the rear and swung to the right in consequence of the cramping of the front wheels, the right front wheel ran over plaintiff's right foot causing the injuries of which complaint is made. She cried out and the defendant applied the brakes of the car so quickly that the engine was stopped and the wheel remained stationary on the foot until people nearby hurriedly came forward, pushed the wheel aside, and released her.

On direct examination, the defendant testified, as shown by the following questions and answers:

"Q. What was your position in the car during the period of time you were backing to that position?

A. I was sitting in the car looking over my right shoulder thru the rear window to see that everything was clear behind.

Q. Did you see Mrs. Ewing at all?

During the time I was progressing?

Q. Yes.

A. Not after I had moved three feet."

And on cross-examination he stated, in response to the question, "You stated that you did not see Mrs. Ewing any after the first three feet, what do you mean by that?": "That I had looked to the rear and was watching to the rear." His wife testified on cross-examination:

"Q. You were looking over your right shoulder, looking out the back window?

A. My left.

Q. Did you see your husband watching back?

A. He was watching back.

Q. Both turned to the inside of the car?

A. Yes, sir."

Such other facts as are deemed essential to a proper disposition of the questions raised will be subsequently mentioned.

The only contentions advanced on behalf of plaintiff in error are that the evidence of defendant's negligence in the case is not sufficient to support the verdict and judgment, and that the verdict is excessive and the result of passion and prejudice on the part of the jury.

Concerning the first contention: Vol. 3-4, Huddy's Cyclopedia of Automobile Law (9th Ed.) 219, says:

"The driver of an automobile must exercise ordinary care in backing his machine, so as not to injure others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured."

In Autio v. Miller, 92 Mont. 150, 11 P.2d 1039, it is stated, concerning the duty of an operator of a motor vehicle:

"The driver must look 'not only straight ahead, but laterally ahead.' Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327, 329, 25 A. L. R. 1508; Huddy on Automobiles (8th Ed.) p. 384, § 369. 'Moreover, a person is presumed to see that which he could see by looking. * * * He will not be permitted to say that he did not see what he must have seen, had he looked,' as Mr. Justice Toole said in Grant v. Chicago, M. & St. Paul Ry....