Garner v. Brown

Citation31 Wyo. 77,223 P. 217
Decision Date18 February 1924
Docket Number1085
PartiesGARNER v. BROWN
CourtUnited States State Supreme Court of Wyoming

APPEAL from District Court, Natrona County, CYRUS O. BROWN, Judge.

Action by H. L. Garner against H. H. Brown for damages alleged to have been caused by negligence in driving an automobile. There was a judgment for plaintiff and defendant appeals.

Affirmed.

Floyd E. Pendell for appellant.

The Wyoming automobile law governing meetings at street or road intersections requires a driver to give the right of way to vehicles on his right, 3488 Comp. Stats.; the petition shows that Brown's automobile had the right of way, no question of city ordinance violation is involved in the case; the petition is not supported by the evidence; there was no evidence as to the value of respondent's car, the evidence being directed to the cost of repairs, which was not the proper measure of damages; the rule of damages is the difference between the value, before and after the damage.

Cobb and Cobb for respondent.

The petition charges an improper, unlawful, negligent and reckless manner of driving appellant's automobile, which allegations were proved at the trial; the petition pleads a cause of action within the rule provided by Section 5649 Comp. Stats.; the ruling of the trial court upon appellant's demurrer is not assigned as error; the city ordinance requires careful driving with due regard to the width, character of travel and use of the streets, and the safety of pedestrians and other vehicles; 3488 Comp. Stats. is not the law of the case, the Section having been amended by Chapter 69, Laws 1921; moreover, it was clearly intended to apply to public highways outside of towns respondent's car, traveling at a reasonable rate of speed, had crossed the center line of the street intersection when it was struck by appellant's car; the trial court passed upon the conflict of evidence and its findings should not be disturbed, 2 R. C. L. 204; Collins v Stanley, 15 Wyo. 282; as to appellant's third assignment concerning the measure of damages, it seems sufficient to point out that no objection was made to the evidence offered, as to the nature of the damages; the court assessed the minimum amount of damages, to-wit: the amount necessary to place the car in its former condition, which was a substantial compliance with the rule; the measure of damages relating to personal injuries was fairly applied by the court; the judgment should be affirmed.

BLUME Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

H. L. Garner, the plaintiff and respondent, sued the defendant and appellant H. H. Brown for the recovery of damages in the sum of $ 2945.90 alleged to have been caused to the person and property of plaintiff by the defendant Brown in negligently colliding with plaintiff's car at the street intersection of Ninth Street and David Street in the city of Casper. The plaintiff recovered judgment for $ 240.00 and from that judgment defendant appeals.

1. Defendant claims that plaintiff's petition does not state facts sufficient to constitute a cause of action, on the alleged ground that the acts of negligence of appellant are not stated. The petition alleges that the appellant drove his automobile, at the time in question, northward on David Street "in an improper, unlawful, negligent and reckless manner," and that while so propelling it, in the manner aforesaid, he drove it into the automobile of plaintiff, causing the injuries of which complaint is made. The specific acts of negligence are not otherwise stated. The general rule, well supported by authority, is that negligence is a mixed question of law and fact; that hence a petition charging defendant with an act injurious to plaintiff, with a general allegation of negligence in the performance of the act, is sufficient to withstand a general demurrer and need not be made more specific as to such allegations of negligence in the absence of a motion for that purpose. No such motion was made in this case, and under the rule mentioned, the petition herein must be held sufficient.

2. Counsel for defendant further contends that the judgment herein is contrary to law, in that there is no evidence to support the damages found by the court. The specific reason for the objection is that the measure of damages herein is the difference in the value of plaintiff's automobile before the accident and the value thereof after the accident; that there is no evidence showing the value of said automobile at any time and hence there is no basis on which to found the judgment. The courts appear to be at variance as to the proper measure of damages in such cases. Some of them appear to hold that the reasonable value of repairs to an injured automobile is the proper measure of damages for the injury. Huddy, on Automobiles, Sec. 720. The more prevalent rule appears to be that the detriment, in the absence of total destruction of the property, is the difference in the value of the property immediately before and after the injury, provided, however, if the injury is capable of repair at an expense less than the diminution in value of the property as...

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15 cases
  • Ries v. Cheyenne Cab & Transfer Company
    • United States
    • Wyoming Supreme Court
    • May 25, 1938
    ...to enter an intersection, the one approaching from the right shall have the right of way." Rec. page 127, Abstract p. 32. Garner v. Brown, 31 Wyo. 77, 223 P. 217; Christensen v. McCann, 41 Wyo. 101. The question the plaintiff's negligence which might have contributed to her injury was prope......
  • King v. Richards-Cunningham Company, 1809
    • United States
    • Wyoming Supreme Court
    • January 9, 1934
    ... ... 968, 22 ... N.C. C. A. 371; McClure v. Hoopeston Co., 21 N.C. C ... A. 534; 20 C. J. 380-381; Dierks Lumber Co. v ... Brown, 19 F.2d 732; Warn v. Davis, 61 F. 63; ... Hardesty v. Lumber Co., 34 Mont. 151; Damgard v ... School Dist. (Calif.) 298 P. 983; Maki v ... of absence of negligence in the installation and operation of ... the refrigerating plant. This court, in Garner v ... Brown, 31 Wyo. 77, 223 P. 217, in response to a ... contention that a petition failed to state a cause of action, ... heretofore pointed ... ...
  • Hill v. Walters
    • United States
    • Wyoming Supreme Court
    • March 12, 1940
    ... ... Meyers (Nebr.) 209 N.W. 238. One ... having the right-of-way must use due care. 21 A. L. R. 988; ... 37 A. L. R. 509; 47 A. L. R. 613; Garner v. Brown, ... 31 Wyo. 77; Christensen v. McCann (Wyo.) 282 P ... 1061. The last clear chance doctrine is based upon the ... assumption that the ... ...
  • Pierce v. Bean, 2161
    • United States
    • Wyoming Supreme Court
    • July 29, 1941
    ... ... 392; Cooper v ... Vucinish, 201 P. 351; Chiswell v. Nichols, 137 ... Md. 291; Elgin Dairy Co. v. Shepherd, 183 Ind. 466; ... Brown v. Chambers, 65 Pa. S.Ct. 373; Judd v ... Webster (Calif.) 195 P. 929; McCafferey v. Auto ... Liability Co., 186 N.W. 585; Simmon v. Lit ... ground that he had the right of way under the quoted ... provision of section 72-204, supra. In Garner v ... Brown, 31 Wyo. 77, 81-82, 223 P. 217, 218, we referred ... to this provision of the statute, and said, among other ... things, that "though ... ...
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