Collins v. Anderson

• Decision Date: 18 November 1927
• Docket Number: 1301
• Citation: 260 P. 1089,37 Wyo. 275
• Parties: COLLINS v. ANDERSON [*]
• Court: Wyoming Supreme Court

260 P. 1089

37 Wyo. 275

COLLINS v. ANDERSON ^[*]

No. 1301

Supreme Court of Wyoming

November 18, 1927

ERROR to District Court, Park County; PERCY W. METZ, Judge.

Action by Clara F. Collins, executrix of the last will and testament of W. S. Collins, deceased, against Charles W. Anderson. Judgment for defendant, and plaintiff brings error.

Reversed and Remanded.

C. A Zaring and Thomas M. Hyde and E. E. Enterline, for plaintiff in error.

The direction of a verdict for defendant was erroneous; defendant and others were not engaged in a joint enterprise, Ryan v. Snyder, 29 Wyo. 146; occupants of an automobile having no control over the driver, are not engaged with him in a joint enterprise and have an action for injuries due to his negligence. Beard v. Klusmeier, (Ky.) 164 S.W 319; 2 R. C. L. 43; Lockhead v. Jensen, 129 P. 347; St. Louis Co. v. Bell, 159 P. 336; Allen v. Co. (Wash.) 165 P. 99; Dodge v. Salinger, (Wash.) 217 P. 1014. Where there is evidence to support a theory of liability as well as non-liability for accident, both should be submitted upon proper instructions, Cerrillos Co. v. Deserant, (N. M.) 49 P. 807; s. c. 55 P. 290 (reversed in 178 U.S. 409). The operator of an automobile owes a duty of reasonable care in its operation to occupants of the car, Perkins v. Galloway, (Ala.) 69 So. 875; L.R.A. 1916 E. 1190; Spring v. McCabe, (Calif.) 200 P. 41; Bauer v. Griess, 108 A. 771; Tenn. Co. v. Van Hoy, 226 S.W. 229; 20 A. L. R. 1014; Liston v. Reynolds, (Mont.) 223 P. 507; Railway Co. v. Ives, 144 U.S. 408; Cameron v. Co., (Mont.) 56 P. 458; Midland Co. v. Gibson, (Okla.) 221 P. 100; Olmstead v. City, (Wash.) 109 P. 604. Questions of fact must be passed upon by jury. Boswell v. Bank, 16 Wyo. 161; Prickett v. Sherman, 205 P. 250; Wagner v. Donald, (Mont.) 214 P. 1099; Kelly v. Hamilton, (Okla.) 189 P. 535; Messman v. Wilt, 217 P. 412; Phillips v. Classan, (Okla.) 219 P. 708; Hicks v. Co., (Ore.) 220 P. 133. Contradictions in the evidence are to be weighed by the jury, Commeaus v. Co., (Vt.) 80 A. 51; Calwell v. Co., (Ia.) 115 N.W. 605; Bank v. Huddelson, (Ore.) 144 P. 494. A verdict should not be directed unless there is no conflict in the evidence, and that introduced demands a particular verdict. Ins. Co. v. Co., (Ga.) 55 S.E. 11. The court erred in receiving testimony as to the speed of the car at the time of the accident. Opitz v. Schenck, (Calif.) 174 P. 40; Spring v. McCabe, (Calif.) 200 P. 41. Negligence is clearly charged in the petition. Surviving heirs may recover for death by wrongful act. Mizen v. Co., (Mont.) 100 P. 971; Anderson v. Wirkman, (Mont.) 215 P. 224.

C. W. Axtell, R. N. Matson, and C. A. Swainson, for defendant in error, filed no brief.

Before POTTER, Justice, BURGESS and TIDBALL, District Judges. TIDBALL, District Judge, concurs. POTTER, Justice, dissenting.

OPINION

BURGESS, District Judge.

This is an action brought by Clara F. Collins, as Executrix of the last will and testament of W. S. Collins, deceased, against Charles W. Anderson to recover damages for the death of said decedent caused by the alleged negligence of Anderson while driving an automobile which upset while Collins was an occupant.

The allegations of the amended petition charging the defendant with negligence are in substance that the car in question was in an unsafe, dangerous and defective condition to drive and operate in that the steering gear was out of repair, worn and loose of which the defendant had knowledge; that he drove said car on a rough and sandy portion of the highway and upon a down grade thereon at a high and dangerous rate of speed, namely, between 25 and 30 miles per hour, and that by reason of the defective steering gear and the high rate of speed over this particular portion of the highway the defendant lost control of the car causing it to upset, and causing Collins injuries which resulted in his death.

The answer was a general denial coupled with a further defense that Collins, the defendant and others were at the time of the accident engaged in a mutual or common enterprise and that all had an equal right in the direction or control of the automobile in question.

The trial was before a jury but upon the conclusion of all the evidence in the case the court, upon the motion of the defendant, directed a verdict in his favor. The plaintiff has brought the case here by proceedings in error.

Four grounds were set forth in the motion. They are in substance: First, that the defendant, and the decedent were engaged in a mutual enterprise in which they were interested and in which they had an equal right and voice in the control of the automobile in question. Second, conceding for the motion only that the evidence shows negligence for which the defendant is liable, it also shows that the overturning of the car might have been caused by a puncture in the right front tire for which he would not be liable and that to submit the case to the jury would be to permit them to conjecture as to the cause of the accident. Third, that the evidence wholly fails to disclose any negligence or want of care in the operation of the automobile at the time of the accident. Fourth, that the evidence fails to show the death of Collins was caused by the injury complained of.

In considering whether the trial court was justified in taking the case from the jury we must accept as true the evidence in favor of the plaintiff together with such inferences as might reasonably be drawn therefrom, and then determine whether such evidence and such inferences would support a verdict in the plaintiff's favor if such a one were returned by the jury. We are not concerned with conflicts in the evidence. That is for the jury. Our only inquiry is whether the evidence in the plaintiff's favor if believed by the jury would, with the reasonable inferences therefrom, warrant a verdict in her favor.

The evidence in the case shows that while the defendant was not the owner of the car in question, a Ford, he was driving it at the time of the accident and had driven it that day and the day before; that the steering gear was worn and loose, and that the car would not respond to the wheel as it should; that the defendant had knowledge of it before the accident; that the car overturned at the bottom of a stretch of road which was about 5% down grade; that this stretch was about 215 feet long, was rough and at the bottom sandy; that the road made a left turn at the bottom; that just as the defendant started down this sloping piece of road a car came up from behind and the driver therein honked his horn which was heard by the defendant who speeded up his car; that the front wheels of the car then commenced to wobble and the car itself went from one side of the road to the other, or as one witness put it the car was jumping; when it reached the bottom it was about two feet out of the road to the right; it then turned abruptly to the left, upset and catching Collins caused him injuries which resulted in his death. The speed of the car as it went down this slope and at the time it overturned was estimated by witnesses at 15 to 25 miles an hour. One of the occupants said "the fastest the car was going on the trip was at the time of the accident." There is also evidence that the defendant said after the accident, "I am through with fast driving, I have had my lesson."

There is no evidence in the record that the defendant, as he started down the slope, or after the car commenced to "wobble" put the car into a lower gear, or attempted to do so or applied the brakes or attempted to do so, or did anything to check its speed, except as he said, to turn off some of the gas.

This evidence, if believed by the jury, would, in our opinion have justified them in finding that the upsetting of the car was due to the negligence of the defendant as alleged in the petition, unless, of course, under other evidence in the case they found it was due to some other cause for which the defendant...