Corson v. Wilson

• Decision Date: 17 December 1940
• Docket Number: 2169
• Citation: 56 Wyo. 218,108 P.2d 260
• Parties: CORSON ET AL v. WILSON
• Court: Wyoming Supreme Court

108 P.2d 260

56 Wyo. 218

CORSON ET AL v. WILSON

No. 2169

Supreme Court of Wyoming

December 17, 1940

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Actions consolidated by agreement under Revised Statutes, 1931 § 89-1069 as amended by Laws 1939, c. 51, by W. A Corson and by William P. Hoare against W. E. Wilson, for damages caused by collision of automobiles. From a judgment for defendant, plaintiffs appeal.

Judgment affirmed.

For the plaintiffs and appellants, there was a brief and an oral argument by Vincent Carter of Cheyenne.

The judgment is not sustained by sufficient evidence and is contrary to law. The circumstances created a presumption of negligence. 1 Thompson on Negligence, Sec. 15. A prima facie case of negligence was established against defendant. Blashfield's Cyc. of Automobile Laws and Practice. Vol. 2, Section 1221. Tomasin v. Lanfermann (Wis.) 238 N.W.2d 463; Becker v. Mattel (La.) 165 So. 474; Banking Co. v. West, 186 N.E. 289; Malzasoszki v. Jacobson, 186 A. 227; Donahue v. Mazzoli, 80 P.2d 743; Sylvia v. Etscovitz (Me.) 189 A. 419; Roberts v. Economy Cabs, 2 N.E.2d 128; Powell v. Power Company (Mo.) 81 S.W.2d 957. The average driver reacts to a warning in three-fourths of a second, during which time the distance traveled by defendant's car was 16 1/2 feet, and the distance traveled by the approaching car was 44 feet, a total distance of 60 1/2 feet. See Chart on Page 539, Vol. 9, Blashfield's Cyc. of Automobile Law and Practice. The force and violence of a collision may determine the rate of speed. Comestock v. Smith (Wash.) 48 P. 255; Thornton v. Philips (Ky.) 90 S.W.2d 347; Cunningham v. Spangler (Pa.) 186 A. 173; Linde v. Emrich (Calif.) 61 P.2d 338; McFeeters v. Lee (Pa.) 117 A. 798; Purcell v. Goldberg (Calif.) 93 P.2d 578. The physical facts should be considered in determining an automobile driver's negligence. Monso v. Ry. Co. (Wash.) 179 P. 848; Larsen v. Bliss (N. Mex.) 91 P.2d 811; Ellison v. Colby (Vt.) 8 A.2d 637; Burdaj v. Conn. Co. (Conn.) 143 A. 527; Dorne v. Adams (Mass.) 137 N.E. 650; Proper v. Brenner (Wash.) 71 P.2d 389; Southern Ry. Co. v. Shain (Mo.) 105 S.W.2d 915. The care required of defendant must be commensurate to the danger to be avoided. Waters v. Transfer Co. (La.) 137 So. 578; Marsee v. Hunts (Ky.) 55 S.W.2d 376; Pietsch v. McCarthy (Wis.) 150 N.W. 482; Hazel v. Motor Bus Co. (Ill.) 141 N.E. 392; Williams v. State (Md.) 155 A. 339; Mauser v. Abraham (La.) 164 So. 418; Topper v. Maple (Ia.) 165 N.W. 28; Ries v. Transfer Co., 53 Wyo. 104; Henderson v. Land, 42 Wyo. 369; Dallas R. R. Co. v. Darden (Tex.) 38 S.W.2d 777; Murphy v. Read (Ore.) 72 P.2d 935. In every case, for a judgment to be sustained by the appellate court, there must be in support of it reasonable evidence sufficiently consistent with the circumstances and probabilities to raise a fair presumption of truth. The admitted facts, together with the physical evidence, are of great importance and should be analyzed with care to determine where the truth lies.

For the respondent, there was a brief and oral argument by M. A. Kline of Cheyenne.

The only negligence charged against defendant is a failure to give attention to surrounding circumstances. No presumption of negligence arises from the mere happening of an accident. 45 C. J. 1148; Reardon v. Elevated Railway Co., 141 N.E. 857; Bloom v. Bailey (Pa.) 141 A. 150; Kowlak v. Ten Sleep Mercantile Co., 41 Wyo. 20; Wells v. McKenzie, 50 Wyo. 412; Jackson v. W. A. Norris (Wyo.) 93 P.2d 498 O'Malley v. Eagan, 43 Wyo. 233; Uhl v. Fertig (Cal.) 206 P. 467; Seattle v. Gibson (Wash.) 165 P. 106; Wilson v. Roach, 222 P. 1000. In the latter case, the facts were similar to those in the case at bar. The doctrine of res ipsa loquitur has no application to the facts in this case. 45 C. J. 1193. Roberts Economy Cabs (Ill.) 2 N.E.2d 128; Sweeney v. Erving, 228 U.S. 233; Morgan v. Southern Pacific Co. (Cal.) 187 P. 74; Kleinman v. Banner Laundry Co. (Minn.) 186 N.W. 123; Riggsby v. Tritton (Va.) 129 S.E. 493; Rost v. Roberts (Wis.) 192 N.W. 38; National Ins. Co. v. Wallace (Tex.) 118 S.W.2d 609; Johnson v. Ry. Co. (Tex.) 117 S.W.2d 864; Pierce v. Great Falls and Ry. Co. (Mont.) 56 P. 867; Garvey v. Coleman Lamp Co. (Kan.) 213 P. 823; Orcutt v. Century Building Co. (Mo.) 99 S.W. 1062; O'Rourke v. Marshall Field & Co. (Ill.) 138 N.E. 625; Federal Electric Co. v. Taylor, 19 F.2d 122; White v. Ry. Co., 246 F. 427. Plaintiffs cannot recover on acts or grounds not alleged in their pleadings. 41 C. J. 1131; Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1; Cohn v. United Air Lines Transport Corporation, 17 F.Supp. 865. The chart which appears on page 539, Volume 9 of Blashfield's Cyclopedia of Automobile Law and Practice is without application to the facts in the present case. If the brakes of defendant's car were in good working condition, it could not have been stopped within a distance of less than ten feet after the brakes were applied; or within a distance of twenty-five feet after defendant became aware of danger. Plaintiffs' own authorities refute their arguments. Where there is substantial evidence to support the findings of the trial court, the judgment will not be reversed. Carter Oil Co. v. Gibson, 34 Wyo. 53; Neil v. Updike (Wyo.) 95 P.2d 81; Reinecker v. Lampman (Wyo.) 96 P.2d 561; Quealy Land & Livestock Co. v. George, 36 Wyo. 268.

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

OPINION

KIMBALL, Justice.

The appeal is from a single judgment in two actions by different plaintiffs, W. A. Corson and W. P. Hoare, against the same defendant, W. E. Wilson, for damages caused by a collision of motor cars. As the issues in the two actions, except as to the amount of damage, were the same, the actions by agreement were consolidated under section 89-1069, R. S. 1931, as amended by chapter 51, session laws of 1939. The trial was to the court without a jury, and judgment was for defendant on a general finding in his favor. Plaintiffs appeal, and contend that the decision is not sustained by sufficient evidence.

The collision occurred about 6:30 o'clock in the evening of February 6, 1939, on Eighteenth street between Warren and House avenues. Eighteenth street runs east and west and is crossed by the two avenues running north and south, Warren west and House east of the place of collision. Plaintiffs' cars were unoccupied and parked diagonally, side by side, Corson's west of Hoare's, with their front wheels at or near the curb on the south side of Eighteenth street in front of Corson's home about 100 feet east of Warren avenue. Several other cars were parked east of plaintiffs' in the same block and on the same side of the street, but none west. There were also cars parked on the other side of the street in the same block. The space left in the center of Eighteenth street for travel between the parked cars was rather narrow. The width was not shown by measurement or by any estimate in feet, and the best evidence we have on the subject is that the street at that place "is not as wide as other streets," and "with cars parked on both sides, angling out from the curb * * * there is plenty of room for two cars to meet, but not any room to spare." The front of defendant's car, which defendant was driving east on Eighteenth street, struck the rear of plaintiffs' parked cars, forcing the Corson car forward (southeast) over the curb, and sideways (east) into the Hoare car. When defendant's car was stopped after the collision it was facing eastward with its front bumper entangled with the rear bumper of the Hoare car. The bill for repairs to Corson's car was $ 134; to Hoare's, $ 40.

The only eye witness was the defendant himself, whose testimony was substantially as follows: He was an experienced driver and his car was equipped with lights and brakes that were in good order. He was driving with his dimmers on, and at a speed not in excess of 15 miles an hour. When he had crossed Warren avenue he saw the parked cars in the block ahead of him, and also saw another car which was then at the House avenue intersection and approaching with bright lights, at a high rate of speed and near the center of the street. He was watching both the oncoming car and the parked cars on his right; "was staying out into the street far enough" to avoid hitting the parked cars, and driving pretty close to the back of them in order to give the oncoming car all the room he could. When the two moving cars were about 30 feet apart the oncoming car turned sharply toward defendant who for an instant, because of the bright lights of the other car, could not see what was ahead of him. Then, in the language of the witness: "I just didn't stop to think; I just turned my car, turned it to the right, in order to keep him from hitting me. * * * I turned my car to the right without even thinking * * * and applied my brakes as quick as I could." The collision followed almost instantly.

Plaintiffs, together in the Corson home, heard the noise of the collision, came out and talked with defendant. What defendant then said as to the cause of the accident was proved as a part of plaintiffs' case. Mr. Corson testified that defendant "said it was his fault," but other witnesses did not remember that statement, and it is clear from all the testimony on the subject that if defendant said it was his fault the statement was qualified, and not meant as an admission that he had been negligent. Mr. Corson testified that defendant added "that he couldn't help it, that to avoid being run down he had to turn into our cars." Mr. Hoare and another witness also testified that defendant explained that the collision was in avoiding another car.

The charge of negligence, as stated in each of the petitions, was that def...