Feltner v. Bishop
| Decision Date | 26 January 1960 |
| Docket Number | No. 2899,2899 |
| Citation | 348 P.2d 548 |
| Parties | Britt C. FELTNER, by Kurt C. Feltner, his next friend, Appellant (Plaintiff below), v. Jack Keith BISHOP, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Albert E. Nelson and William H. Jackson, Jr., Rock Springs, for appellant.
A. Joseph Williams and Glenn A. Williams, Cheyenne, for appellee.
Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.
The plaintiff, by his father as his next friend, sued defendant to recover damages for injuries sustained in an automobile accident. The case was tried to the court and judgment rendered in favor of defendant. Plaintiff appeals.
The evidence in the case is undisputed, but appellant contends (a) it only admits of inference favorable to the plaintiff and, therefore, the negligence relied upon is a question of law and not of fact; (b) the proximate cause of plaintiff's injury was defendant's violation of statutory duty; (c) plaintiff, because of young age, was not chargeable with contributory negligence; and (d) negligence of the child's parents could not be imputed to the child so as to bar recovery.
It appears from the evidence that as defendant was driving his automobile at a speed of between 10 and 20 miles an hour, approaching the intersection of two streets, the plaintiff darted from behind an automobile which was diagonally parked to the right of defendant as he was approaching the intersection. At a point somewhat in excess of 6 feet toward defendant's approaching car from the nearest point of the pedestrian-crossing area, as indicated by prolongation of sidewalk lines across the street, the front center of defendant's car struck the child and knocked or carried him to the closest line of the unmarked crosswalk area. The car passed over the child without, however, any of the wheels running over him. The defendant did not see the child but heard a noise which caused him to immediately look backward and discover the child lying on the street. The car was stopped in the center of the street intersection and then was driven across the street, the defendant returning to where the child was lying. Witnesses said they saw the child running from the sidewalk, alongside and close to the diagonally parked car and in front of defendant's approaching car, where he was struck. A local officer testified that he found some skin and blood stains on the street at a point 26 feet from the right-hand curb and 6 feet from the closest prolonged line of the pedestrian-crossing area, measured toward the direction from which the car came. Other evidence showed that immediately before the impact the child was seen to throw his arms in front of him. From this meager evidence the appellant now claims there could be but the single inference that at the time of the accident the defendant was operating his car in a careless and negligent manner and contrary to the law of this State.
In an effort to bolster their thesis that but a single inference can be drawn from the evidence, counsel evidently sense that it would be necessary to destroy the force of the testimony that the child darted from the curb and ran in front of defendant's car. To do this, both in oral argument as well as in brief, it was stressed that when one eyewitness first stated the child 'ran in front of the car', 'But, anyway he was in the middle of the car and he saw he was going to be hit and he threw his hands up like this', 'All I saw was him dart from the curb in front of the car, is all I saw', 'It seemed like he did stop because he threw both hands up in front of him', and then on cross-examination she testified she could not remember if the child was running or walking when she first saw him and could not say if he always was running or always was walking, her evidence was discredited or at least was contradictory. Evidently the trial court did not agree and we ourselves fail to see inconsistency in the testimony. There is no conflict in saying a child was darting and running in front of a car, stopping and throwing up his hands in front of him just before the impact, and not remembering if the child was walking or running when the witness first saw him or was unwilling to say if he was always running or always walking.
We are fully aware of the soundness of the general rule that the operator of an automobile cannot assume that the road is clear and that under all circumstances and at all times an operator is bound to anticipate that persons may be met at any point in a public way, whether street, road or highway. We also feel this duty becomes more strict when the presence of persons upon streets or highways actually exists or becomes more probable. On the other hand, the limit of the operator's duty when lawfully driving is to exercise a diligence commensurate with hazards disclosed under surrounding circumstances, and the lookout which operators of vehicles must maintain is that most effective in the light of all present conditions and those reasonably to be anticipated. See 1 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, Perm. ed., § 681, pp. 563-565.
We also recognize that the existing circumstances surrounding an accident bear largely upon the question of an automobile operator's negligence, and this is particularly important in cases involving the sudden and erratic movements of children. So it is that a vehicle driver must be aware that children may be heedless of their safety. This is especially the case in areas where children are most likely to be found, as in the vicinity of schools and playgrounds. In such places the driver must constantly exercise the greatest degree of care which is humanly possible even to anticipating that a child may unexpectedly dart in front of the vehicle he is driving. Yet, under ordinary traffic conditions and places, even at intersections in towns and cities, the rule is somewhat different. There, the presence of an unattended child of 3 1/2 years, who suddenly darts across the street from behind a diagonally parked car, is to say the least a somewhat unusual and not ordinarily to be expected occurrence. Under such a circumstance, it is understandable that the court felt defendant should not be held to be guilty of negligence.
Nor can it be said that the failure of the defendant to see the child before the accident indicated he did not maintain a proper lookout or was not as alert as he should have been. Even where a high degree of care and caution is required, the law does not demand the type of foresight or vision that would have insured at all events the defendant's seeing the child under the conditions depicted by the evidence in this trial.
In the late Missouri case of De Lay v. Ward, Mo.App., 262 S.W.2d 626, reversed 364 Mo. 431, 262 S.W.2d 628, 634, 635, Id., Mo.App., 275 S.W.2d 396, a not altogether dissimilar case to the one before us, the supreme court explained that the question presented was 'whether in the exercise of the highest degree of care the defendant could and should have seen her [the child] in a position of imminent peril', and the court said that 'a defendant is charged with seeing what he could have seen whether he looked or negligently failed to look'. (Emphasis supplied.) It is not important that in the De Lay case the supreme court agreed with the jury's verdict finding that had the defendant been sufficiently alert the accident might have been avoided. The importance of the case is that it recognized that the criterion was whether or not the defendant not only could have seen, but should have seen, the child in time to avoid the accident. In the case before us, the conclusion of the trial court that the defendant was not chargeable with negligence indicates it found that because of existing circumstances defendant's failure to see the child was not due to his failure to look. The defendant, although exercising due care and caution, might understandingly have missed seeing the plaintiff.
We find it stated in 2A Blashfield, Cyclopedia of Automobile Law and Practice, Perm. ed., § 1498, pp. 406-409, that:
'Thus, when a motor vehicle is proceeding upon a street at a...
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...152, 105 P.2d 272, 274, rehearing denied 56 Wyo. 286, 109 P.2d 49. The attorneys for Mrs. Neighbors relied quite heavily upon Feltner v. Bishop, Wyo., 348 P.2d 548, construing it to hold that a driver is not liable for striking a child whose 'presence could not reasonably be foreseen.' Here......
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