Dr. Pepper Co. v. Heiman

• Decision Date: 21 August 1962
• Docket Number: No. 3057,3057
• Citation: 374 P.2d 206
• Parties: DR. PEPPER COMPANY, a Corporation, Appellant (Plaintiff below), v. Edward H. HEIMAN, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 206

374 P.2d 206

DR. PEPPER COMPANY, a Corporation, Appellant (Plaintiff below), v. Edward H. HEIMAN, Appellee (Defendant below).

No. 3057.

Supreme Court of Wyoming.

Aug. 21, 1962.

Alfred M. Pence of Pence & Millett, Laramie, for appellant.

James A. Tilker of Lathrop, Lathrop & Tilker, Cheyenne, for appellee.

Before PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiff, driving his automobile up an approximate 12 per cent grade, at between 30 and 35 miles an hour, over a road intermittently covered with snow, ice, and ice underneath slush, lost control of his car, when its rear skidded first clockwise to the center-line-marking of the road, and then spun around counterclockwise several times, coming to rest with the rear of the car off the right shoulder of the road, and the front end upon or near the shoulder, where it was struck by the right front of defendant's car which had been following plaintiff's car at from 250 to 300 feet.

As a result of this accident, plaintiff sued defendant, who counterclaimed, each party seeking to recover damages for injuries he claimed to have suffered.

The case was tried to the court which decided to hear the liability issue first, and if liability was established, then to try the damage issue. At the conclusion of the liability trial, plaintiff's offer to prove his damage was refused. Judgment was rendered in defendant's favor on plaintiff's claim, and in plaintiff's favor on defendant's claim, the court finding each of the parties had been negligent.

From this judgment only the plaintiff has appealed, arguing: (1) The court erred in finding plaintiff negligent; (2) the skidding of plaintiff's vehicle was not the proximate cause of the accident, or one of the proximate causes of the accident; (3) the court erred in not applying the last clear chance doctrine; (4) the court erred in not admitting two of plaintiff's photographic exhibits for purposes of showing marks upon the road; and (5) the court erred in refusing to hear evidence of damages offered by plaintiff.

Defendant testified he was driving at between 30 and 35 miles an hour; that only one car passed his vehicle between Rock River and the scene of the accident, a distance of 3.7 miles; and that the passing car was going 'at a pretty good clip', because his wife exclaimed, 'My that guy isn't going to live too long.' This evidence, coupled with plaintiff's own testimony that he had passed the defendant's car within two miles from the scene of the accident, was sufficient to justify the court's holding it was the plaintiff's car which passed defendant's car, and this was also circumstantial evidence that plaintiff was driving at a greater speed in passing the defendant's car than the 35 miles per hour the plaintiff said he was driving. In 32 C.J.S. Evidence § 1039, pp. 1100, 1101, it is pointed out:

'* * * A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence, and may outweigh opposing direct testimony; and the concurrence of well authenticated circumstances has been said to be stronger evidence than positive testimony unconfirmed by circumstances.'

The authorities cited thereunder, including Tisthammer v. Union Pac. R. Co., 41 Wyo. 382, 392, 286 P. 377, 380, bear out the statement.

However, the fact that plaintiff may have reduced his speed to between 30 and 35 miles an hour after passing defendant's car must not be overlooked. And while the negligence of defendant is not at issue upon this appeal, still the evidence seems undisputed that defendant was also traveling at a speed of between 30 and 35 miles an hour, following plaintiff's car at a distance of between 250 and 300 feet at the time plaintiff's car went into its spinning. In any event it seems conclusively established that both cars were being driven at speeds of as much as 35 miles an hour when plaintiff's car went out of control, and it was the province of the trier of fact to determine whether, under all the facts and circumstances present at the time, the driving of a car at that speed was negligence. Certainly the trial court was consistent if its conclusion was that driving at a speed of 35 miles per hour was excessive under the existing road conditions, because it found both parties to be negligent, and we may not say such a conclusion was not justified by substantial evidence.

The evidence also showed that while there was a six-foot-oiled shoulder to the traveled portion of the highway, which traveled portion consisted of an oiled mat, the oiled shoulder dropped off sharply or abruptly two inches below the oiled mat at the point where the shoulder joined the traveled surface. In addition there was testimony that plaintiff was driving with his right wheels on the oiled shoulder rather than upon the oiled mat provided for travel use. Whether these facts contributed to plaintiff's loss of control of his vehicle may be considered by some to be mere speculation, yet it would not seem too unreasonable for the court to permissibly infer that operating a car at speeds of as much as 35 miles per hour under a condition where both the surface of that portion of the highway provided for travel use and the abutting oiled shoulder were intermittently covered with snow, slush and ice, driving the car astraddle of the two-inch sharp break-off from the elevation of the oiled mat and the shoulder of the road, amounted to negligent driving.

Appellant, with creditable supporting authority correctly contends that the skidding or spinning of plaintiff's car is not in itself evidence of his negligence, but in stating that rule courts invariably caution that if the skidding results from the negligent acts or omissions of the driver, he is not absolved from the consequences of his acts and the burden is upon him to excuse or justify his acts or omissions. See Billmeyer v. State, for Use of Whiteman, 192 Md. 419, 64 A.2d 755; Bear v. Devore, Mo.App., 176 S.W.2d 862; 177 S.W.2d 674; Butner v. Whitlow, 201 N.C. 749, 161 S.E. 389; Goyette v. Amor, 294 Mass. 355, 2 N.E.2d 219; Halprin v. Mora, 3 Cir., 231 F.2d 197.

Appellant also draws a favorable conclusion from the following partial statement of this court in Hawkins v. L. C. Jones Trucking Co., 68 Wyo. 275, 299, 300, 232 P.2d 1014, 1023:

'Taking the case of the plaintiff in the most favorable view thereof as we are obliged to do we find Mr. Long, the driver of the L. C. Jones Trucking Company's truck, stating in substance that when the jeep was 50 feet in front of him it skidded and was out of control, but not over the center line of the highway; thereupon the driver got it under control for 10, 15 or 20 feet and then it skidded once more and this second time passed across the center line of the highway directly into his traffic lane.

'This description of the accident hardly supplies any evidence that the driver of the jeep, Bechtold, was at fault in skidding into the path of the truck, nor do we find any other evidence in the record from which it could be so inferred. * * *'

However, to properly evaluate that statement, it is necessary to consider it in the light of what follows, which is:

'* * * It is quite apparent too that Bechtold, according to the driver Long's estimony, was endeavoring to avoid a collision of the two vehicles. Long said the Bechtold car skidded and despite that first skid Bechtold was able to keep his vehicle from crossing the center line of the highway and guide it under control once more, but that the second skid a few feet later on threw the Bechtold car into the path of the truck. This would hardly seem to establish gross negligence, that 'indifference to present legal duty and * * * utter forgetfulness of legal obligations' which our statute declares must exist before a liability arises, § 60-1201, W.C.S.1945 [now § 31-233, W.S.1957], Altman v. Aronson, [231 Mass. 588, 121 N.E. 506, 4 A.L.R. 1185], supra.' (Emphasis supplied.)

Consequently, the court's statement must be considered as only holding that the evidence, including the fact of skidding, did not warrant a finding of gross negligence. The decision is not helpful in deciding whether under the conditions present in the case now before us there was ordinary negligence, which is the issue in the instant case.

Appellant next quotes at some length the factual situation in Wallis v. Nauman, 61 Wyo. 231, 157 P.2d 285, but fails to immediately draw any conclusion therefrom other than through quotation from De Antonio v. New Haven Dairy Co., 105 Conn. 663, 136 A. 567, and Hunt v. Whitlock's Adm'r., 259 Ky. 286, 82 S.W.2d 364, appearing at 61 Wyo. 242, 243, and 157 P.2d 288. This may be because the court in Wallis v. Nauman upheld the trial court's finding defendant negligent when, in driving on a road that was very bad, being icy and 'awfully slick in spots and spots where the snow had been worn out by cars traveling,' he had skidded, blocking the highway, and just before meeting the plaintiff's vehicle had stopped skidding and driven directly into the plaintiff's automobile.

However, appellant laterly seems to conclude the decision in the Wallis case was precedent for holding unexplained skidding absolved from any imputation of negligence. But the Wallis case hardly supports such a conclusion or that skidding upon a slushy and icy road was not evidence sufficient to warrant a finding of negligence on the part of the driver of the skidding vehicle.

Although it was said in Butcher v. McMichael, Wyo., 370 P.2d 937, 939,

'* * * there is no actionable negligence where, without fault of the driver, a vehicle skids across the center line of a highway and collides with an approaching vehicle * * *',

it was also pointed out

'* * * the burden rests upon the driver of the skidding vehicle to show that he was there without any act of commission or omission which constituted fault on his part. Nelson v. Brames, 10 Cir.,...