Gish v. Colson
| Decision Date | 23 October 1970 |
| Docket Number | No. 3842,3842 |
| Citation | 475 P.2d 717 |
| Parties | Robert A. GISH, Administrator of the Estate of Hershel Glenn Guest, Deceased, Appellant (Plaintiff below), v. B. E. COLSON, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Harold Joffe, of Scott & Joffe, Worland, for appellant.
Rex O. Arney, of Redle, Yonkee & Arney, Sheridan, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.
This is a wrongful death case in which Robert A. Gish, as administrator of the estate of Hershel Glenn Guest, deceased, has sued for damages resulting from the death of decedent. The defendant is B. E. Colson, driver of a truck which ran over Guest.
Trial was had to a jury which found for defendant and against the plaintiff. The administrator has appealed from the judgment entered on the verdict. His principal contention, in arguing for a new trial, is that there was a total absence of evidence of contributory negligence; and hence the trial court erred by giving instructions pertaining to the matter of contributory negligence.
We find the contention valid and a new trial necessary.
We think there can be no denial of the general rule that it is rpejudicial error to give instructions on contributory negligence if the defense of such negligence is not supported by substantial evidence. Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, 647; Larsen v. Jerome Cooperative Creamery, 76 Idaho 439, 283 P.2d 1096, 1099-1100. See also 5 Am.Jur.2d, Appeal and Error § 811, pp. 252-253; and 5A C.J.S. Appeal and Error § 1763(1), pp. 1186-1187.
Appellant seems to consider this rule especially applicable because of the principle recognized in this jurisdiction and other jurisdictions, where contributory negligence is an affirmative defense which must be pleaded and proved, that the law presumes (in the absence of eyewitnesses to the accident or other evidence sufficient to dispel or rebut the presumption) that decedent, acting on the instinct of self-preservation, was in the exercise of ordinary care. Wilhelm v. Cukr, 68 Wyo. 1, 230 P.2d 507, 508; Weidt v. Brannan Motor Co., 72 Wyo. 1, 260 P.2d 757, 763; Robledo v. Kopp, 99 Ariz. 367, 409 P.2d 288, 290.
In Hogue v. Southern Pacific Company, 1 Cal.3d 253, 81 Cal.Rptr. 765, 460 P.2d 965, 968, the supreme court of California has said there is no longer a presumption in California that a person who dies as the result of an accident exercised due care for his own safety. The provision of the California code of civil procedure which formerly provided such a presumption had been superseded by a provision in the evidence code which provided: 'The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that issue.'
Also, in Hutton v. Martin, 41 Wash.2d 780, 252 P.2d 581, 587, the supreme court of Washington said, where there is an instruction that contributory negligence is never presumed, there is no need to resort to a presumption that the deceased was exercising due care at the time of the accident because the rule that no person is presumed to have been negligent until the party having the burden of proof establishes that fact by a preponderance of the evidence furnishes adequate protection for a plaintiff.
In Wyoming, Rule 8(c) W.R.C.P., requires the defense of contributory negligence to be pleaded as an affirmative defense. It is axiomatic that the burden of proof for such defense is on the one who asserts it. Therefore, regardless of whether we say Guest, the decedent, is presumed to have used due care for his own safety or whether we say Colson, the defendant, had the burden of proof as far as contributory negligence is concerned, the result is the same. Either way, we must hold it prejudicial error for the trial court to have instructed on contributory negligence unless there was substantial evidence to support the defense of contributory negligence.
This brings us to a review of the pertinent evidence in this case. McGarvinMoberly Construction Company was surfacing a highway near Shoshoni, Wyoming. A few hundred yards from the highway it had an asphalt hot mix plant. Guest was working for the construction company. The company was leasing dump trucks with drivers to haul the hot mix from the plant to the part of the highway being surfaced. These drivers were not employees of the construction company. Colson was driving such a truck.
In presenting his case, plaintiff used a schematic drawing of the scene of the accident. The drawing was not accurate as to scale and one of the witnesses testified the gravel stockpiles were improperly located on the drawing. For purposes of our limited discussion, however, the drawing is quite sufficient, and we are attaching a copy at the end of this opinion.
The accident happened near the end of a day's work. There had been some malfunction in the drying process and other drivers had gone home. Colson was called upon to receive residue out of the hot plant and haul it to the gravel stockpiles, rather than to the surfacing site. He had made one trip, unloading at a stockpile. In returning for another load from the hot plant, he drove forward to a position from which he could back into the hot plant.
Dumping and weighing in the hot plant is controlled from a control van which is indicated in the drawing. Steps from the van extend close to the course of travel for trucks backing into or coming out of the hot plant. The evidence indicates the wheels of the trucks would come within about two feet from the bottom of the steps. There is another door or exit from the van at the opposite side. Generators in the van were running and quite noisy.
It will be seen from the drawing that Colson had an unobstructed view of the area of the steps and in front of the hot plant as he drove forward for his second load of residue. When he started to back, however, he could see behind him only by using his rear-view mirrors, there being one on the right and one on the left of his truck. He could not see immediately to his rear. He testified he used both mirrors and looked through both. He also...
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