Gamet v. Beazley

• Decision Date: 26 June 1945
• Docket Number: 2314
• Citation: 159 P.2d 916,62 Wyo. 1
• Parties: RAYMOND GAMET, Plaintiff and Appellant, v. ELBERT N. BEAZLEY, MERRILL WENHOLZ and WALTER Q. LARSON, Defendants and Respondents
• Court: Wyoming Supreme Court

159 P.2d 916

62 Wyo. 1

RAYMOND GAMET, Plaintiff and Appellant, v. ELBERT N. BEAZLEY, MERRILL WENHOLZ and WALTER Q. LARSON, Defendants and Respondents

No. 2314

Supreme Court of Wyoming

June 26, 1945

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by Raymond Gamet against Elbert N. Beazley and others, for damages suffered in automobile collision. From a judgment for defendants, plaintiff appeals.

Affirmed.

For the Plaintiff and Appellant the cause was submitted upon the brief of Albert D. Walton, George F. Guy and Ruth N. Edelman all of Cheyenne, Wyoming, and oral argument by Mrs. Edelman.

POINTS OF COUNSEL FOR APPELLANT.

While the general rule that the driver of an automobile is as matter of law guilty of negligence in the driving at such a rate of speed as prevents stopping within time to avoid an obstruction within the range of his vision is supported by reason and the weight of authority, it is not a hard and fast rule that must be invariably applied in every case. Chaffee v. Duclos, 105 Vt. 384.

When a car is being operated in violation of the statute, this constitutes negligence in and of itself. Nichols v Watson, 119 Conn. 637, 178 A. 427.

It is settled by the decisions of this court that the violation of a statute is negligence per se, and that one proximately injured thereby may recover therefor against the violator of the law. Newell Contracting Co. v. Berry, 223 Ala 111. Jacobs v. Moniz, 288, Mass. 102.

One who in a sudden emergency acts according to his best judgment, or who because of want of time in which to form a judgment omits to act in the most judicious manner, is not chargeable with negligence. Wells v. McKenzie, 50 Wyo. 412.

There are many authorities announcing the rule that the driver of an automobile who fails to stop or turn aside to avoid an obstruction within the range of his lights is negligence as a matter of law. We think, however, that most of the courts recognize that this is not a hard and fast rule that must be invariably applied, and refuse to apply it when there is evidence from which the jury may find that there were disconcerting circumstances affecting the driver's actions at the time of the collision. Merback v. Blanchard, 56 Wyo. 152.

For the Defendants and Respondents the cause was submitted upon the brief of Carleton A. Lathrop and Clarence A. Swainson, both of Cheyenne, Wyoming, and oral argument by Mr. Lathrop.

POINTS OF COUNSEL FOR RESPONDENTS.

There was competent and sufficient evidence for the trial court to find that a proximate cause of the collision was the negligence of the plaintiff in driving at a speed that was not reasonable and proper under the conditions then prevailing.

Section 27 of Chapter 126, Session Laws of Wyoming, 1939, provides: No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.

Pierce v. Bean, 57 Wyo. 189, 115 P.2d 660.

It is held as a matter of law that plaintiff is barred from recovery because of excessive speed while driving through fog pockets. Sheffner v. Schmerin, (Pa.) 175 A. 516.

The general rule is well established that it is negligence as a matter of law for a motorist to operate his automobile on a highway at such a speed that it cannot be stopped within the distance objects can be seen ahead of it. Goodman v. Wisby, et al. (Kan.) 103 P.2d 804.

The evidence as to any negligence of respondent Larson was conflicting and general finding for said respondent by trial court will not be disturbed.

Section 53, Chapter 126, Session Laws of Wyoming, 1939.

The violation of a duty imposed by statute upon an automobile driver does not of itself impose liability for an injury caused by his car, but it must appear also that the violation of the legal duty was a proximate cause of the injury. Christensen v. McCann, et ux 41 Wyo. 101.

If there is substantial evidence in the record to sustain the finding or if it was made upon evidence conflicting in character, under familiar rules governing appellate court practice, it must stand. Kumor v. Scottish Union, 47 Wyo. 174. Ketchum v. Davis, 3 Wyo. 164.

A motorist may be justified in stopping on the highway when, under the circumstances, it would be dangerous to proceed. Blashfield Cyclopedia of Automobile Law and Practice, Vol. 2, Sec. 1191.

BLUME, Chief Justice. RINER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

Plaintiff brought this action to recover damages sustained by him in a rear-end collision. Plaintiff's automobile, while traveling westward, struck the automobile of the defendants which was standing still on the road. The court found in favor of the defendants and plaintiff has appealed.

The plaintiff was severely injured. In view of our conclusion herein, however, it is unnecessary to set forth the evidence as to the extent of his injury, or as to what damages he sustained. Aside from that, the testimony is, in brief, as follows:

Both cars were traveling westward. The collision occurred about 3:30 o'clock in the early morning of October 24, 1941, about six miles west of Rock River, Wyoming, or about 96 miles west of Cheyenne, on a stretch of road which was straight, with a slight incline, for a distance of about one-half a mile to a mile, with a width of 24 feet of oiled road and a shoulder of approximately 2 feet on each side of the main road. The main witnesses in the case were Charles Emslie, who was driving the plaintiff's car at the time of the collision, and Walter Q. Larson, who was driving the car of the defendants at that time. It was a foggy night, the fog extending from Laramie westward to the place of the collision. It was spotty, however, thicker in some places than in others. Emslie stated that it was definitely foggy at the place of the collision; that the visibility extended from 30 to 40 feet. Larson testified that the fog at the place of collision was very thick, the visibility poor, and that one could not see more than about 20 feet ahead. The witness Collier, highway patrolman, testified that the night was foggy, the fog dense in spots, and that the roads were wet. Hence, there is substantially no conflict on this point.

The car driven by Larson was a four-door Ford Sedan, Model 1937. It was owned by the defendant Beazley, but we shall frequently refer to it as that of the defendants. Beazley was in Los Angeles at the time of the collision. The car had been borrowed from him by the defendant Wenholz who drove it from Los Angeles to Iowa and from Iowa to St. Paul. There he picked up the defendant Larson to travel to California with him and charged him $ 15.00 for the permission to ride in the car. Starting from St. Paul, they drove day and night, taking turns at driving. Larson drove from Cheyenne to the place of the collision. He testified that the moisture and sleet formed ice on the windshield, making it impossible to drive after a certain length of time without stopping to wipe off the windshield; that the windshield wiper did not keep the windshield clean; that he stopped two or three times after leaving Laramie in order to clean the windshield; that just before the collision, with Wenholz asleep in the front seat, he stopped to clean the windshield, the car resting partly on the road and partly on the shoulder; that before doing so he went to the back of the car. The front and rear lights of the car were on. Within two or three minutes thereafter he saw a car approaching from the East; that he had a flashlight in his pocket, ran some 100 to 150 feet back of his car, waving the flashlight when plaintiff's car went past him. "Q. Did the driver of the other automobile slow down any? "A. No, sir. Q. At what rate of speed was that automobile traveling when it struck your car A. I would say at least 50 miles per hour or better when it passed me. It was going right along." According to his testimony, after the plaintiff's car hit the car of the defendants it went about two car lengths further on. The car of the defendants went 50 feet beyond that, swerved to the left of the road into a borrow pit, and was facing east when it stopped. The defendants' car was, according to the witness damaged mainly on the left side; the doors were pretty well bound up from the pressure of the impact of the accident, and the trunk door of the car, too, was damaged. According to the witness Wenholz, the front seat of this car was torn loose and upset, and while he had been asleep in the front seat, he found himself, after the collision, in the back part of the car, himself having sustained minor bumps and bruises. The witness Emslie, testifying to the damage to plaintiff's car, stated: "The left running board was mangled and pushed back. The left door would not close and the left front fender and light were demolished and the right front fender was repairable and the light and all ornaments and what-nots on the right side were intact, but the left front light had to be replaced." An itemized repair bill for this car was introduced in evidence showing that it cost the plaintiff $ 317.53 to have the car repaired. The witness Collier stated that the whole of the front of the plaintiff's car was damaged, the left possibly more than the right; that the striking force against the car of the defendants was about equally distributed across the back, indicating in his judgment that the car of the defendant was wholly on the oiled road, and he stated that he could not find any trace on the shoulder of the road showing the car of the defendants to have been on it partially.

Soon after the collision a bus came along the road, and was stopped by the flashlight already mentioned. It took the parties in both cars to Rock River from which place an...