Gale v. Kay

• Decision Date: 25 March 1964
• Docket Number: No. 3184,3184
• Parties: Frank GALE, Appellant (Plaintiff below), v. Dale R. KAY, Dwaine Hilliard, C. A. Thomas, and LeBar Motors, Appellees (Defendants below), and Universal Underwriters, (Intervenor below).
• Court: Wyoming Supreme Court

Page 596

390 P.2d 596

Frank GALE, Appellant (Plaintiff below), v. Dale R. KAY, Dwaine Hilliard, C. A. Thomas, and LeBar Motors, Appellees (Defendants below), and Universal Underwriters, (Intervenor below).

No. 3184.

Supreme Court of Wyoming.

March 25, 1964.

Henderson, Godfrey & Kline, David D. Uchner, Cheyenne, for appellant.

Houston G. Williams, Casper, for appellees.

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

Mr. Justice McINTYRE delivered the opinion of the court.

Frank Gale as plaintiff brought suit against the driver and owners of a wrecker truck for damages resulting from an accident on icy roads, which occurred about 2 p. m., April 16, 1960, west of Douglas, Wyoming. Gale's wife was killed in the accident; he himself received personal injuries; and his automobile was badly damaged.

A jury awarded damages to the plaintiff in the amount of $27,500. The award was against Dwaine Hilliard who drove the wrecker; and LeBar Motor Company and C. A. Thomas as employers of Hilliard and owners of the wrecker. The trial court gave judgment in favor of these defendants notwithstanding the verdict, and the plaintiff has appealed.

In addition to the driver and owners of the wrecker, Gale also brought his action against Dale R. Kay, the driver of a semitrailer truck which was wrecked at the scene of Gale's accident. Gale alleged a collision with the semitrailer and also a collision with the wrecker. However, in connection with the claim against defendant-Kay, the jury found in favor of Kay and against plaintiff-Gale.

Although Kay's name was included in the appeal, no effort has been made to reverse the judgment in his favor. We therefore confine our considerations to the question as to whether there was sufficient evidence of negligence on the part of Hilliard to support the jury's verdict against him and against his employers who owned the wrecker truck.

Of course, we would not pretend to say whether the jury resolved the matter of Hilliard's negligence correctly; but we do think there was sufficient evidence from which it could reasonably infer negligence, which would mean the issue became a jury question.

An important factor in our determination is the testimony regarding weather conditions. Kay, driver of the semitrailer truck, described the visibility as 'almost zero,' when he came upon the scene. Hilliard himself said it was snowing and blowing snow and the roads were very bad and icy. He also said the visibility was bad.

Andrew C. Ayres, driver of a pickup and a rancher who had lived in the vicinity of the accident during all of his lifetime of 76 years, said the roads were the iciest he had ever seen; that the wind was blowing and it was snowing; and there was a ground blizzard and visibility was about 50 feet.

One of the highway patrolmen who investigated the accident testified that the highway was solid ice; that the wind was blowing hard and in his opinion nobody should be passing because of the wind and icy conditions. He described the visibility as being zero at times and said the maximum that could be seen ahead was 50, 60 or 70 feet, depending upon the wind velocity at the time. Another patrolman further verified that road conditions were very bad, being very icy and slippery.

Francis W. Curtin, who lives at Douglas, was at the scene of the accident. He testified that weather conditions were had and the road was icy and the wind was blowing. At times, he said, visibility was zero and at times about 50 feet, as the wind was blowing snow. Also the defendant C. A. Thomas described similar road conditions.

Failure To Place Flares

Hilliard traveled to the west and passed by a distressed Buick automobile which was in the south barrow pit and which he was to pull back onto the highway. He turned around at a side road 200 feet beyond. Despite road conditions and a lack of visibility such as the witnesses described, he did not stop at that point to set up flares.

If he intended to place flares on the highway, for the purpose of warning east-bound travelers from the west, whose lane of traffic he would be using, it would seem from all descriptions of the accident area that this would have been a good place to leave his wrecker and set up the flares.

In any event, the jury could have concluded existing weather conditions were such that an ordinarily careful and prudent driver would have stopped off the traveled portion of the highway and placed flares before attempting to maneuver his wrecker into a position, in a lane of traffic, for pulling a car out of the barrow pit.

Hilliard himself freely admitted the use of flares were indicated under the circumstances present. He testified that he had not put out flares or flashing signals because 'I hadn't had time; I hadn't had my vehicle stationed yet.' He also said he 'was going to put out flares as soon as I got pulled back up into position.'

Obviously, it was well within the province of the jury to believe that a person of ordinary care would have placed the flares and then pulled into position, instead of first maneuvering his vehicle and stationing it in a lane of traffic and then undertaking to place flares.

The need for care in warning oncoming traffic is indicated by the fact that something caused the Buick automobile to go into the ditch; afterwards the collision between the wrecker and Gale's automobile occurred; the semitrailer was wrecked before it could be stopped; and Ayres' pickup was also ditched and wrecked with the semitrailer on top of it.

Movements on Highway

Hilliard admits his wrecker was struck from the rear by Gale's vehicle while he was attempting to get the wrecker in a position, on the highway, for pulling the distressed Buick out of the ditch. On the whole, the testimony of Hilliard was somewhat confused, insofar as his movements on the highway were concerned and with respect to the manner in which he intended to pull the Buick back onto the highway.

The following facts can be concluded from his testimony and from other undisputed evidence in the case, however:

1. The roadway itself was a two-lane highway, 24 feet wide. For approximately five minutes before being struck the wrecker was on the highway in the vicinity of the Buick, with all four wheels on the pavement. The Buick was sitting with its rear end to the north and toward the highway.

2. Hilliard drove up to where the Buick was and then backed 20 or 30 feet. This was done he said, 'So I could get to the angle to pull him out.' He was going to get in a better position to 'latch on' to the distressed vehicle. Although he was up even with the Buick before backing, he testified that in his opinion he had to back and come up even again to get in the position he desired. After backing, Hilliard said he stopped and started pulling 'over here' to get in position to pull out the car.

With the Buick sitting as it was, perpendicular to the highway, the jury was warranted in assuming the 'position' referred to so many times by Hilliard as a position to pull out the car had to be a position somewhat across the highway. We have no way of knowing where the 'over here' was, toward which he started pulling after his backing, but we can assume it satisfied the jury and had a part in the jury's determination.

Counsel for plaintiff asked the witness to mark his position on a plat, but counsel for defendant-Hilliard interposed an objection. The court sustained it. We hardly think counsel who made the objection can now expect us to resolve the doubt, as to the position indicated by Hilliard, in Hilliard's favor. In any event, Hilliard made it quite clear without any contradiction that all of his maneuvers were on the pavement and main-traveled part of the highway.

Moreover, there is no contradiction of the fact that the wrecker was struck on the left-rear corner. According to Hilliard, this caused the wrecker to be turned or spun almost all the way around. It ended up across the highway and in the center, which means it was far enough on the highway, when struck, so that it made such a turn without going into the barrow pit.

With respect to the backing done by Hilliard, he claims to have backed 20 or 30 feet, after which he had started forward again. Apparently he had only started forward again, at two to four miles per hour or 'just barely creeping,' when struck by Gale. This testimony was such that it may have left an impression with the jury to the effect that Hilliard's backing got him into a dangerous position, from which he had not yet recovered when struck.

In making our review of the evidence pertaining to Hilliard's movements on the highway, we have not intentionally omitted testimony more favorable to defendants. However, such testimony, if any, need not be considered inasmuch as the question before us is whether there was substantial evidence to support the jury's verdict. Additionally, the jury was entitled to reject such portions of Hilliard's testimony as it thought had been colored to excuse his conduct. Merback v. Blanchard, 56 Wyo. 152, 105 P.2d 272, 274, rehearing denied 56 Wyo. 286, 109 P.2d 49.

Testimony of Plaintiff

The plaintiff himself testified as to events leading up to his accident, saying that his vehicle collided with the semitrailer driven by Kay and not with the wrecker driven by Hilliard. However, his complaint alleged a collision with the semitrailer and also a collision with the wrecker. Negligence on the part of Kay and negligence on the part of Hilliard were alleged. The court instructed the jury as to issues in accordance with the allegations and not on the basis of plaintiff's testimony.

It is clear and uncontradicted from the evidence that the collision impact was severe--in fact so severe that Gale's wife was killed immediately and Gale himself, according to medical testimony, was rendered unconscious with a brain concussion. He said the next thing he remembered he was in the hospital at Cheyenne. This must...