Fitzsimonds v. Cogswell, 3416
| Decision Date | 22 September 1965 |
| Docket Number | No. 3416,3416 |
| Citation | 405 P.2d 785 |
| Parties | Robert FITZSIMONDS, Appellant (Defendant below), v. Bertha K. COGSWELL, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
John Harrington, of Hettinger, Leedy & Harrington, Riverton, for appellant.
G. L. Spence, Riverton, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
This is a negligence case involving an intersection collision between two automobiles in Riverton, Wyoming. Trial was had to the district court without a jury. From a judgment awarding Bertha K. Cogswell, plaintiff, a judgment in the amount of $7,500 for personal injuries, Robert Fitzsimonds, the defendant, has appealed.
Two grounds of appeal are asserted. They are: (1) The evidence establishes (without substantial contradiction) that plaintiff was guilty of contributory negligence; and (2) there was insufficient evidence to sustain the amount of the award.
There is no denial that, according to the evidence favorable to Mrs. Cogswell, she had the right-of-way in the intersection. She was traveling north and Fitzsimonds was traveling east, which means Mrs. Cogswell was on the right; and if as her testimony showed, she entered the intersection first or at approximately the same time as Fitzsimonds did, she is given the right-of-way by law. See § 31-118, W.S.1957.
Actually, reliable testimony offered on behalf of and favorable to Mrs. Cogswell tended to show she entered the intersection before Fitzsimonds did. It is very doubtful that there was any evidence at all from which it could be inferred that she did not enter the intersection at least approximately at the same time as Fitzsimonds did, if in fact she was not first.
Appellant's theory is that Mrs. Cogswell did not look for oncoming traffic before entering the intersection and that this makes her guilty of negligence, which bars her recovery. In support of this theory, Fitzsimonds points to his own testimony and to the testimony of one other witness, both of whom testified Mrs. Cogswell did not look. It is also argued that if Mrs. Cogswell had looked she would have seen the defendant's vehicle.
Of course, the court was entitled to believe the testimony of Mrs. Cogswell that she looked both ways at a certain point marked on a map, which was just before she entered the intersection, and that she saw no car coming. Moreover, the court was entitled to disbelieve defendant and would perhaps have been justified in so doing on the ground that, if defendant saw Mrs. Cogswell entering the intersection without looking, he should not have run into her broadside. The court was also entitled to discount the testimony of the other witness who said Mrs. Cogswell did not look, because of the lack of vantage point which the witness had. The witness testified she caw the accident while watching out a window in her home, which was approximately a half block away.
But the argument made by defendant fails most noticeably because it is based upon his own theory as to how the accident happened and not upon plaintiff's theory, which the court probably accepted. The plaintiff's theory is that defendant was traveling at least 40 miles an hour in a school zone where speed is limited to 15 miles per hour, and that plaintiff was going 15 to 20 miles per hour.
There seems to be no dispute as to plaintiff's speed, and there was ample evidence from which the speed of defendant could be inferred to be what plaintiff claims. Not only did witnesses testify defendant was going 40 miles per hour, but there was physical evidence such as the damage which resulted to the cars. Also, the defendant left skid marks for a distance of 44 feet before the collision; the impact itself was still sufficient to knock plaintiff's vehicle 41 feet sideways; and defendant's vehicle skidded an additional 23 feet.
If the two vehicles were traveling at speeds of approximately 40 miles an hour for defendant's and 15 or 20 miles an hour for plaintiff's, then it could be inferred that when plaintiff looked for oncoming cars the defendant was so far to the west that his automobile would not have been seen by plaintiff, on account of a house at the corner and an automobile parked on the street in front of the house. The police chief who investigated the accident testified to this situation and said the house made the corner a bad one and that the parked automobile would have a tendency to block Mrs. Cogswell's view.
We scarcely need to repeat the proposition that the question of negligence and the question of contributory negligence are both for the trier. See McDowall v. Walters, Wyo., 360 P.2d 165, rehearing denied 361 P.2d 528; McClure v. Latta, Wyo., 348 P.2d 1057, 1062; and Borzea v. Anselmi...
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