Christensen v. McCann

• Citation: 282 P. 1061,41 Wyo. 101
• Decision Date: 10 December 1929
• Docket Number: 1576
• Parties: CHRISTENSEN v. McCANN ET UX. [*]
• Court: United States State Supreme Court of Wyoming

282 P. 1061

41 Wyo. 101

CHRISTENSEN v. McCANN ET UX. ^[*]

No. 1576

Supreme Court of Wyoming

December 10, 1929

APPEAL from District Court, Laramie County; CLYDE M. WATTS, Judge.

Action by Nels Christensen against Bernard M. McCann and wife. Judgment for plaintiff, and defendants appeal.

Affirmed.

For the defendants and appellants there was a brief by H. S. Ridgely of Cheyenne.

The evidence disclosed that appellant, under the law, had the right of way. Laws 1925, Chap. 158. Cheyenne Ordinance No 333, Sec. 14. Respondent was driving at an excessive speed and in violation of city ordinance No. 333, Sec. 11. Respondent did not sound horn as required by law. Laws 1925 Chap. 158, Sec. 3. Respondent was on the wrong side of the street, and made no effort to avoid collision; no negligence can be imputed to appellant. Failure to look to the left was not in itself evidence of negligence. 42 C. J. 981; Carlson v. Miresberger, 204 N.W. 432; Woodruff v. Ewald, 230 P. 149; Whiteswan Laundry v. Boyd, 279 S.W. 345. When a driver is proceeding in favored direction, the fact should be considered in determining the question of reasonable care. Gardner v. Brown, 31 Wyo. 77. Violation of laws or driving rules is negligence. Melior v. Burke, 233 P. 295. Appellant had right to assume respondent would observe the laws. 42 C. J. 977, Sec. 705; Pederson v. O'Rourke, 209 N.W. 789; Wagner v. Larsen, 182 N.W. 336; Sliter v. Clark, 220 P. 785; Kinney v. King, 190 P. 834; Ranch v. Osborne, 239 P. 112. That driver of car proceeding in favored direction, is not driving carefully does not excuse driver in unfavored direction. Carlson v. Miresberger, supra; White v. Pupillo, 263 S.W. 1011. Failure to sound warning, aggravates respondent's negligence. Mueller v. Hokekamk, 260 S.W. 118; Stengleder v. Lonsdale, 253 S.W. 487; Hutchinson v. Railroad, 161 Mo. 253, 61 S.W. 637; Campbell v. C. B. & Q. R. R. Co., (Mo.) 245 S.W. 58. Failure to obey city ordinance is negligence per se. Moy Quon v. M. Furuya Co., 143 P. 99; Fisher v. Ellston, 156 N.W. 422; Franey v. Seattle Taxicab Co., 141 P. 890; Huddy (8th Ed.) Sec. 411. It is negligence per se to drive an automobile in excess of the prescribed limit. Mather v. Aggeler etc. Co., 178 P. 713; Carler v. Caldwell, 109 N.W. 355; Hubbard v. Barthlomew, 144 N.W. 13; Riser v. Smith, 162 N.W. 520. Respondent, under his evidence is not entitled to recover. C. B. & Q. Ry. Co. v. Cook, 18 Wyo. 43. With particular reference to the appeal of Bernard P. McCann, we submit that the judgment against him is wholly unsupported by evidence. He was not present, had nothing to do with the accident; the car belonged to his wife and was operated by her at the time of accident. 30 C. J. 790. The marital relation of itself, is insufficient ground for recovery against him, unless it appear that negligent acts of the wife were committed in furtherance of husband's business, or in the execution of his orders. Bretzfelder v. Demaree, (Ohio) 130 N.E. 505.

For the respondent, there was a brief and oral argument by H. B. Henderson, Jr., of Cheyenne.

There was no evidence that respondent was driving at an excessive rate of speed; there was evidence that Mrs. McCann was driving at about 30 miles per hour. The fact that appellant's coupe struck the 2 1/2 ton load with sufficient force to overturn the truck, damaging it to the extent of about $ 300.00, indicates the speed at which the Buick coupe was traveling, which was about twice as fast as the truck was traveling. It was the duty of appellant to conduct herself in accordance with the law within the intersection. Borrello v. Rohrer, 4 La. App. 510; 42 C. J. 985; Lachance v. Myers, (Vt.) 129 A. 172; Collins v. Liddle, (Utah) 247 P. 476. The following cases exemplify the law governing drivers at intersections. Blum v. Gerardi, 182 N.Y.S. 297; Weber v. Greenebaum, (Pa.) 113 A. 413; Groeschell v. Washington Chocolate Co., (Wash.) 224 P. 19; Ward v. Gildea, 186 P. 613; Yull v. Berryman, (Wash.) 162 P. 513; Southall v. Smith, (La.) 27 A. L. R. 1194 and note; Burlie v. Stephens, 193 P. 684; Rupp v. Keebler, 176 Ill.App. 619; Hughes v. Motor Co., (Kan.) 207 P. 795; Gilman v. Olson, (Ore.) 265 P. 434. The case is exactly like that of Garner v. Brown, 31 Wyo. 80. A husband is liable for the torts of his wife regardless of emancipation. Such is the common law in force in this state. 4547 C. S. Judgments rendered against husband and wife for wife's torts, require execution first levied on lands of wife, if she have any. C. L. 1876, c. 82; Choen v. Porter, 66 Ind. 194; Schuler v. Henry, (Colo.) 94 P. 363; Quick v. Miller, 103 Pa. 67. Unless the legislature has expressly relieved the husband from liability from the torts of his wife, the common law rule prevails. Henderson v. Wendler, (S. C.) 17 S.E. 851; Morgan v. Kennedy, (Minn.) 64 N.W. 912; Fitzgerald v. Quinn, (N. Y.) 17 N.E. 354; Holtz v. Dick, 42 Oh. St. 23; Nichols v. Nichols, (Mo.) 48 S.W. 947. The record clearly shows that respondent was free of all negligence and appellants culpable to the extent found by the lower court. Through inadvertence a page of respondent's brief was omitted, which we now desire to include. No different conclusion could be reached by the appellate court even though it were inclined to pass upon the sufficiency of the evidence. Riordan v. Horton, (Wyo.) 94 P. 448; City of Rawlins v. Murphy, (Wyo.) 105 P. 436. In this case, the evidence was conflicting, but the appellate court will not substitute its own findings for findings of the trial court on conflicting evidence. Perco v. Co., (Wyo.) 259 P. 520; Farmers Lumber Co. v. Luikart, (Wyo.) 256 P. 84.

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

OPINION

RINER, Justice.

This is an appeal from a judgment of the District Court of Laramie County obtained by the respondent Nels Christensen, hereinafter mentioned as the "plaintiff," against the appellants Bernard P. McCann and Mrs. Bernard P. McCann, subsequently generally referred to as the "defendants" or by their respective names. The action arose in consequence of an automobile collision between a Buick coupe owned and driven by Mrs. McCann and a Ford delivery truck, owned and driven by the plaintiff, which occurred at the intersection of Pershing Boulevard and Warren Avenue in the city of Cheyenne. Plaintiff and Mrs. McCann in their pleadings each charged the other with negligence and claimed the damages each vehicle suffered by reason of the collision. Bernard P. McCann filed a general denial of the allegations of plaintiff's petition.

The trial was to the court, culminating in the judgment heretofore mentioned, wherein findings were made generally in favor of the plaintiff and against both of the defendants. The court also specifically found that the collision and the injuries to plaintiff's truck were caused by the negligent and careless driving of the defendant Mrs. Bernard P. McCann, and that the plaintiff's truck had entered the intersection of Pershing Boulevard and Warren Avenue before her car did, and that said truck was approximately in the center of the intersection of these streets before her car came into said intersection. The court further found that Mrs. Bernard P. McCann is the wife of Bernard P. McCann and that judgment should be entered against them both.

The evidence of the parties themselves and their witnesses was in many respects conflicting concerning the facts upon which the findings of the trial court relating to negligence were based, and hence under the familiar rule of appellate procedure, so often adverted to by this court, we can only look into the record to see if there is substantial evidence therein to support the findings of the court below. If there is, we cannot review the facts, even though, were we hearing the case originally, we might feel inclined to come to a conclusion different from that reached by the trial court. Huber v. Bank, 32 Wyo. 357, 231 P. 63, 234 P. 31.

Our examination of the record has led us to the conclusion that there is substantial evidence to uphold the findings below so far as the defendant Mrs. Bernard P. McCann is concerned. There is testimony, in some respects disputed, to the following effect: That on the afternoon of the accident, plaintiff was driving his Ford truck--a vehicle 15 feet long--easterly along Pershing Boulevard. Just how rapidly he was going is in conflict. He himself says about or approximately twenty miles an hour; other witnesses say about fifteen miles per hour. Mrs. McCann testified that she was driving the Buick coupe not over fifteen miles per hour, and that the truck "was not going faster." She herself was proceeding northerly on Warren Avenue at a rate of speed also in dispute. One witness testified that her car was moving at the rate of thirty miles an hour. Plaintiff's truck weighed 2650 pounds, and was loaded in the rear over the back wheels with 1300 pounds of grain and in front of the grain on the floor of the truck were crates of milk bottles weighing 810 pounds--the total weight of the entire outfit being nearly two and a half tons. The Buick car was estimated to weigh about 3500 pounds. Plaintiff first saw Mrs. McCann's car when she was about half way along the block preceding the intersection of Pershing Boulevard and Warren Avenue. Neither party sounded any horn as they approached the intersection of these streets, which plaintiff entered first. He then reached the center of the intersection before the Buick car entered that area. Although plaintiff swerved to the left in an endeavor to avoid a collision, his truck was thereafter struck by Mrs. McCann's automobile over the right rear wheel, her car's right front wheel being about 6 inches in front of the rear right wheel of the truck, and the truck's front wheels...