Ellsworth Bros., Inc. v. Crook

• Decision Date: 15 October 1965
• Docket Number: No. 3392,3392
• Citation: 406 P.2d 520
• Parties: ELLSWORTH BROTHERS, INC., Appellant (Plaintiff below), v. Harvey CROOK, Appellee (Defendant below), and Lawrence Bruce (Defendant below).
• Court: Wyoming Supreme Court

Page 520

406 P.2d 520

ELLSWORTH BROTHERS, INC., Appellant (Plaintiff below), v. Harvey CROOK, Appellee (Defendant below) and Lawrence Bruce (Defendant below).

No. 3392.

Supreme Court of Wyoming.

Oct. 15, 1965.

David Norman Burns, Jackson, for appellant.

Vincent A. Vehar, Evanston, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff Ellsworth Brothers, Inc., an automobile dealer doing business in Idaho Falls, Idaho, purchased two used cars in Denver, Colorado, and arranged with one Glen D. Kneen, an independent contractor, for delivery of the cars to its place of business in Idaho. In attempting to make delivery Kneen left Denver driving one car, a Thunderbird, and towing the other, a Chevrolet. At about 5 p. m. on October 17, 1962, Kneen while proceeding northward upon a hard-surfaced, fenced, welltraveled highway at a point near Smoot, Wyoming, collided with a calf and a cow that were at a curve upon the highway, with resulting damages to both vehicles. Thereafter plaintiff commenced this action against defendant Lawrence Bruce, the owner of the cattle, and the defendant Harvey Crook, alleged to have been in charge of the cattle, to recover its damages. The action was tried to a jury and a verdict was rendered for plaintiff and against the defendants jointly in the approximate sum of $1,660. Thereafter motions were filed on the part of both defendants praying for judgment notwithstanding the verdict. The motions were sustained and the trial court directed that judgment be entered for defendants dismissing plaintiff's action. Plaintiff appealed from the judgment so entered.

Apparently plaintiff under its general charge of negligence--and in this we are unaided by any clarification of the issues through pretrial conference or otherwise--undertook to prove as one element of its claim that the defendants acting in concert in a joint enterprise violated the provisions of Ch. 46, § 53, S.L. of Wyoming, 1961 (§ 11-507, W.S.1965 Cum.Supp.), which pertains to livestock running at large within the confines of fenced highways, and that such violation was the proximate cause of plaintiff's injuries.

As to this, the trial court in an informal written memorandum contained in the record and which is entitled to consideration here under Rule 52(a), Wyoming Rules of Civil Procedure, stated that one basis for its action in granting the motions was plaintiff's total failure of proof. In so concluding, the trial court made reference to our holding in Hinkle v. Siltamaki, Wyo., 361 P.2d 37, construing the provisions of the above statute and setting forth the elements necessary to prove a violation, and although counsel for plaintiff now asks this court to reconsider the pronouncements made in that case, we are not so inclined for several reasons. In the first instance plaintiff in its brief has specifically waived its appeal from the judgment absolving defendant Bruce from liability and with respect to the defendant Crook has taken a position here--which we later point out--that in essence constitutes a waiver of plaintiff's theory that defendant Crook was acting in violation of the statute. Consequently, the statute is not properly before us in this case and we have no occasion to review the Hinkle case, supra, except to say that nothing is presented that in any way indicates the decision to have been erroneous, and we would remind counsel that the legislature has twice been in session since the decision and so far as we are informed has taken no action to reject the interpretation placed upon the statute by this court.

The crux of this appeal lies in the exception taken by plaintiff to a further reason assigned by the court as a basis for absolving the defendant Crook wherein the court stated:

'Further, the cattle on and along the highway were, by the other defendant, either being moved to another place or he was attempting to move them off the highway. In either event he seemed to be in charge and doing all he could under the circumstances.'

With respect to this phase of the case plaintiff argues that there was substantial evidence to support the verdict of the jury and, by the granting of the motion on the grounds stated, the trial court invaded the province of the jury. Plaintiff's theory in this respect is that there was sufficient substantial evidence from which the jury could find that the defendant Crook was in charge of the cattle for the sole purpose of moving them down the highway to the ranch of defendant Bruce; that in making such use of the highway he failed to exercise ordinary care for the protection of other persons upon the highway as was his duty; and that the defendant Crook's negligence in performing that undertaking was the proximate cause of plaintiff's injury. In response counsel for the defendant Crook asserts that defendant Crook was simply endeavoring, as a volunteer, to remove the cattle from the highway and there was no substantial evidence upon which the jury could base a finding that said defendant was guilty of negligence proximately causing the accident. The respective contentions necessitate some further discussion of the evidence.

It is disclosed by the record that at the time of the accident the highway was dry, the sun was just going down, and it had been a nice, clear day. The highway in question is well traveled and runs through a somewhat hilly part of Wyoming. There are numerous curves in the area where the accident occurred. The speed limit was sixty-five miles per hour and Patrolman Erickson, who investigated the accident, testified that the curve involved here was a moderately well-banked curve and was 'not particularly dangerous.' At that point the surfaced portion of the highway was twenty-four feet in width with a borrow pit of some nine feet between the surfaced portion and embankments that were on both sides of the highway at the curve.

Kneen, called as a witness for plaintiff, testified that he was driving in the north-bound lane at approximately forty miles per hour just before coming to the curve and in order to prevent 'jacknifing' of the towed vehicle while rounding the curve he accelerated to between forty-five or fifty miles an hour. At about that time he observed cattle coming toward him on the highway at a distance or between 100 to 150 feet, 'running pretty fast.' There were about twelve head of cattle involved. Not all of the cattle were on the highway and there were none in the southbound lane. In response to questions concerning his reaction he said his first reaction was to look for 'an opening and try to avoid hitting them and when I saw that was impossible I just did everything I could to stop and avoid hitting them.' He also said, 'Well, I applied the brakes and I didn't want to lose control of the car if I could help it but I saw that there was no way else--it is so hard to explain what actually did happen, because I just tried my best to stop.' According to the measurements taken by the patrolman the Thunderbird skidded a total distance of 101 feet before coming to a stop. All of the 'skid marks' were in the northbound lane of traffic and the car came to rest within a few feet after striking the calf and the cow. The Chevrolet broke loose from the tow at about the time Kneen applied his brakes, went up the right-hand embankment to some extent, caromed off into the southbound lane of traffic, and collided with defendant Crook's pickup at a distance of some 122 feet from where it broke loose.

Just how the cattle got there is not made entirely clear in the record. However, there is uncontroverted evidence that the cattle had been ranging west of the highway; that the ranch of defendant Bruce was down the highway, south of the curve which was the direction the cattle were traveling; that although the highway was fenced there were gates and side roads near the place of the accident and that a fence on the west at about the same point was 'very poor fence.' All of this evidence tended to show that the cattle had 'drifted' into the highway going from the range to the ranch of defendant Bruce. In addition the defendant Bruce testified without contradiction that no arrangements had been made with the defendant Crook to move the cattle over the highway. Also in regard to this, the defendant Crook, when called as a witness by plaintiff under Rule 43(b), W.R.C.P., said that he was traveling south on the highway in his pickup and first observed the cattle drifting south 'along the road' at a distance of some 300 to 400 feet north of the curve where the accident occurred. Nevertheless, on the basis of a statement made to Kneen by the defendant Crook at the time of the accident that he was 'herding them back to the owner's property' and a statement made to an insurance adjuster that 'I started them up the road to put them in his field'--meaning the ranch of defendant Bruce--the plaintiff argues that there was sufficient evidence to sustain its theory. We do not agree. First the admissions are not inconsistent with the direct testimony upon the question. Secondly, 'Inferences contrary to direct testimony are not ordinarily sufficient to support a finding.' Forbes Company v. MacNeel, Wyo., 382 P.2d 56, 57.

That, however, does not entirely dispose of plaintiff's theory. Plaintiff argues that even though the defendant Crook first saw the cattle 'along the highway' he thereupon took charge for the purpose of moving them down the highway to the ranch of defendant Bruce and in so doing the defendant Crook was charged with using the same degree of care as that imposed upon a person using the highway for the sole purpose of moving livestock from place to place. We are also unable to accept that premise.

In the first instance, we are convinced that the only inference which could be drawn from the evidence relating to the defendant Crook's undertaking was that he acted...