Grayson v. Williams

• Decision Date: 21 May 1958
• Docket Number: No. 5746.,5746.
• Citation: 256 F.2d 61
• Parties: Murray GRAYSON and Southern Freightways, Inc., a corporation, Appellants, v. Harold E. WILLIAMS, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

256 F.2d 61 (1958)

Murray GRAYSON and Southern Freightways, Inc., a corporation, Appellants, v. Harold E. WILLIAMS, Appellee.

No. 5746.

United States Court of Appeals Tenth Circuit.

May 21, 1958.

J. J. Hickey, Cheyenne, Wyo. (Norman B. Gray, of Ellery, Gray & Hickey, Cheyenne, Wyo., was with him on the brief), for appellants.

Carleton A. Lathrop, Cheyenne, Wyo. (Carl L. Lathrop and James A. Tilker, Cheyenne, Wyo., were with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and MURRAH, United States Circuit Judges.

HUXMAN, Circuit Judge.

This was an action by Harold E. Williams against Murray Grayson and Southern Freightways, Inc., for damages arising out of the collision of a truck driven by Williams and one driven by Grayson, as an employee of Southern Freightways, Inc. Trial was had to a jury which returned a verdict for plaintiff upon which judgment was entered.

The collision occurred about 4:00 a. m. on April 5, 1956. At the time, Williams was driving a truck owned by the Union Pacific Railroad in an easterly direction toward Cheyenne, Wyoming. The truck operated by Grayson was traveling easterly along the same highway and was operated by him as an employee and agent of Southern Freightways and was being operated in the course of his employment at the time of the accident. Plaintiff's cause of action was predicated upon the allegation that Grayson negligently drove his truck into the rear of plaintiff's truck; that he operated his truck at a high, dangerous and excessive rate of speed; that he was negligent in not having his truck under control, and in failing to keep a proper lookout. The only negligence charged against Southern Freightways was that imputed by law from the negligent acts, if any, of its employee while engaged within the scope of his employment. Defendants denied negligence on their part and affirmatively pleaded contributory negligence on plaintiff's part in that his truck was at least partially on the wrong side of the highway.

A number of assignments of error are urged for reversal which it will be necessary to consider. It is contended that prejudicial error was committed in admitting plaintiff's exhibit 29. Exhibit 29 was a large diagram portraying in plat form the scene of the accident. There is also claimed prejudicial error on the court's refusal to admit in evidence appellant's exhibit A, as originally presented.

Exhibit 29 was prepared in large part from defendant's exhibit A. Exhibit A was the official plat prepared by Sgt. Schwarting, a Wyoming highway patrolman, and was made pursuant to a statutory duty to diagram accidents on Wyoming highways. The objection to exhibit 29 was that no proper foundation of accuracy or verification had been laid for it and that it contained excerpts of the official plat favorable to appellee, and that such use of a public record was improper.

No attempt was made to draw exhibit 29 to exact scale nor was it intended to accurately reflect official exhibit A. It was intended as a fair representation of the road conditions and skid marks found at the scene of the accident. An examination of the record supports the conclusion that it did fairly represent conditions at the scene of the accident. The general rule is that an illustrative diagram intended to portray existing facts may be employed if it is a correct portrayal of existing facts. This is so no matter by whom the diagram is made, so long as the trial judge is satisfied that it is a correct portrayal of facts sought to be established.¹ We think exhibit 29 met the test of the rule and was properly admitted.

It is urged that the court erred in refusing to admit appellants' exhibit A, as originally offered. Exhibit A, as originally submitted, in addition to showing the highway, skid marks and the position of the trucks as they came to rest, contained the conclusions of the patrolman as to the point of impact of the vehicles at the time of the accident, and the assumed pathway of the vehicles subsequent to the accident. The deleted portions represented the patrolman's conclusions as to what occurred from the facts as he saw and recorded them on the plat.

It is conceded that Sgt. Schwarting had many years of experience investigating accidents in his capacity as a highway patrolman and qualified as an expert witness relative to auto accidents. The general rule is that expert testimony or conclusions to be drawn from the facts are inadmissible in cases where the normal experience and qualification of laymen jurors enables them to draw proper conclusions from given facts. It is only in those cases where such experiences do not enable laymen to reach correct conclusions that experts may be called upon to draw conclusions from technical experience or skill in a special field. This rule was decided by the Tenth Circuit in Nelson v. Brames, 241 F.2d 256, a Wyoming case. See also E. L. Farmer and Company v. Hooks, 10 Cir., 239 F.2d 547. This is also the rule stated by the Wyoming Supreme Court in Macy v. Billings, 74 Wyo. 404, 289 P.2d 422, 424. The court, although the statement is somewhat in the nature of dictum, quoted with approval from the authorities as follows:

"* * * `Normally, expert testimony is inadmissible to show how and where an accident took place, or the position of the automobiles.\' * * *"

All the physical facts were shown on appellants' exhibit A. They were such as are within the experience of ordinary intelligent persons. The jurors were competent to draw their own conclusions flowing therefrom unaided by the opinion of experts. The court did not abuse its discretion in deleting the Sergeant's conclusions as to what occurred from the exhibit portraying the physical facts before admitting it into evidence.

It is urged that the court erred in refusing to give appellants' instruction to the effect that if the jury found that appellee was driving his truck astride the center line of the highway at the time of the accident that such fact would constitute negligence per se. Wyoming has a statute which provides that "Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, * * *".² It is a misdemeanor for any person to violate any of the provisions of the Act.³ The court instructed the jury,

"In connection with this statute, I charge you that said statute was applicable to the highway on which this accident occurred, and if you find from a preponderance of the evidence that the plaintiff, Harold E. Williams, at the time of the accident was operating the truck of his employer in such a manner that a portion of said truck was in the left half of the roadway and across the center line, you may consider this element as a circumstance in determining the question of contributory negligence. And you are instructed if you further find that such negligence, if any, contributed to plaintiff\'s injury and damage, then the plaintiff cannot recover and your verdict must be for the defendant."

Appellee's position is that under Wyoming law violation of a traffic law only constitutes evidence of negligence. No Wyoming case squarely answering this question has been found. In Hester v. Coliseum Motor Company, 41 Wyo. 345, 285 P. 781, 784, the court quoted from the authorities holding that by the great weight of authority a violation of a traffic regulation was "negligence per se." But with respect to the issue of negligence in the case the court instructed the jury that such violation "whether they be of the state or municipality, are at least evidence of negligence."

In Blessing v. Pittman, 70 Wyo. 416, 251 P.2d 243, 250, the court stated that. "Failure to observe statutory requirements has been held to be negligence per se." But the decision did not turn upon whether the statutory violation was negligence per se or only evidence of negligence. It was stated that a statutory violation made the offender liable for "* * * damages proximately caused by reason thereof."

Wallis v. Nauman, 61 Wyo. 231, 157 P.2d 285, 289, arose under a statute making it the duty of a driver of an automobile to remain on his side of the road when meeting a vehicle traveling in the opposite direction. The court held that driving on the left-hand side of a street or in the center thereof is not of itself negligence, since rules requiring operation of automobiles on the right side of a roadway do not contemplate strict compliance therewith except when an automobile passes another coming from the opposite direction. It was after this decision that the statute in question was passed. It is of interest to note that in the Wallis case the Wyoming Court quoted from a Maryland case construing the duty of a vehicle operator under a statute substantially identical with the present Wyoming statute in which the Maryland Court said Kelly v. Huber Baking Co., 145 Md. 321, 125 A. 782, "`It has been held that one who violates this statute does so at the risk of being held for negligence where collision and resulting injuries are directly and proximately caused by such violation.'" and that "`the presence of defendants' automobile on the left side of the road, * * * would constitute evidence of negligence.'"

It would seem that while the Wyoming Court has not drawn a clear distinction between the terms negligence per se and evidence of negligence, it is nonetheless committed to the doctrine that a violation of a traffic law or regulation will impose liability only when it is the proximate cause of the resulting injuries.⁴ The court did tell the jury that the statute was applicable, and in effect told that if it found plaintiff violated the statute the jury should consider it as a circumstance establishing contributory negligence. This is manifest from its statement that if the jury found "that such negligence, if any" — that is, if the plaintiff was in the wrong lane — "contributed to plaintiff's injury and damage, then the plaintiff cannot recover." In our view,...