Harmon v. Town of Afton

• Decision Date: 20 November 1987
• Docket Number: No. 86-127,86-127
• Citation: 745 P.2d 889
• Parties: Ted HARMON and Ada Jan Harmon, husband and wife, Appellants (Plaintiffs), v. TOWN OF AFTON, a municipal corporation, Appellee (Defendant), Julie Hunting (Defendant).
• Court: Wyoming Supreme Court

Page 889

745 P.2d 889

Ted HARMON and Ada Jan Harmon, husband and wife, Appellants (Plaintiffs), v. TOWN OF AFTON, a municipal corporation, Appellee (Defendant) Julie Hunting (Defendant).

No. 86-127.

Supreme Court of Wyoming.

Nov. 20, 1987.

Roy A. Jacobson, Jr., and Sharon M. Rose of Vehar, Beppler, Jacobson, Lavery and Rose, P.C., Kemmerer, for appellants.

John A. Sundahl and Paul Kapp of Godfrey, Sundahl & Jorgenson, Cheyenne, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

Appellants Ted and Ada Jan Harmon brought an action against Julie Hunting and appellee Town of Afton following an automobile accident in which Ted Harmon suffered injuries to his back and legs. In the course of the proceedings, Hunting was discharged in bankruptcy from any liability arising from the accident, and appellants proceeded to trial against appellee. At the close of the evidence, the jury found that appellee was negligent but that its negligence was not the proximate cause of the accident. In accordance with the jury's findings, the district court entered judgment in favor of appellee.

We affirm.

Appellants set forth three issues on appeal:

1. Whether the jury's finding that appellee's negligence was not the proximate cause of the accident is supported by substantial evidence;

2. Whether the district court erred in instructing the jury and allowing counsel for appellee to comment on the effect of joint and several liability; and

3. Whether the district court erred in denying admission of the accident report into evidence.

On February 15, 1984, at approximately four in the afternoon, Ted Harmon was driving west on Sixth Avenue in Afton, Wyoming. As he entered the intersection of Sixth Avenue and Madison Street, another vehicle traveling north on Madison Street also entered the intersection. Harmon attempted to brake and swerve to the right, but the left front of his vehicle struck the right front side of the second vehicle.

Both Madison Street and Sixth Avenue are two-lane streets. Traffic is controlled at the intersection by yield signs facing the northbound and southbound lanes of Madison Street. There are no traffic lights or signs at the intersection controlling eastbound and westbound traffic on Sixth Avenue. At the time of the accident, the streets were snow packed and icy. Snowbanks left by plows lined the edges of both streets.

Upon impact, the passenger side of the northbound vehicle driven by Hunting slid into the driver's side of Harmon's car. As the cars collided, Harmon felt a sharp pain in his back and legs. When his car came to a stop and he attempted to get out, he realized he could not move his legs. Hunting went to a nearby house and called the police. A short time later, an officer of the Afton police department arrived, followed by an ambulance. Harmon was extracted from his car and taken to the hospital.

On February 27, 1985, appellants filed a negligence action against Hunting and appellee. In their complaint, appellants alleged that Hunting was negligent in failing to keep a proper lookout, control her vehicle, yield to oncoming traffic, and exercise care for her safety and that of others. In their claim against appellee, appellants alleged generally that appellee violated its duty to exercise reasonable care in maintaining the streets by creating a dangerous condition along Sixth Avenue and Madison Street. Appellants set forth a variety of dangerous conditions including snowbanks; inadequate traffic signals; insufficient equipment, manpower, and supervision; lack of sanding; and improper design of the intersection. Appellant's complaint further stated that, as a direct and proximate cause of the negligence of Hunting and appellee, Ted Harmon sustained injuries to his back and legs, and his wife, Ada Jan Harmon, was denied the care and companionship of her husband. After Hunting was discharged in bankruptcy from any liability, appellants filed an amended complaint naming appellee as the sole defendant.

I

Appellants contend that the jury's finding that appellee's negligence was not the proximate cause of the accident is not supported by substantial evidence.

We previously have held:

" 'As a reviewing court, we assume the evidence of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict therewith, and give the evidence of the successful party every favorable inference which may reasonably be drawn from it.' " Huang International, Inc. v. Foose Construction Company, Wyo., 734 P.2d 975, 979 (1987), quoting DeJulio v. Foster, Wyo., 715 P.2d 182, 185 (1986).

"[W]hen dealing with questions of fact, this court will not ordinarily substitute its judgment for that of the jury. * * * So long as there is sufficient evidence upon which the jury could rationally base its findings, such findings will not be adjusted in any way by this court." DeJulio v. Foster, 715 P.2d at 185.

" 'In addition, when reviewing a jury verdict, we leave to the jury the duty of ascertaining the facts, reconciling conflicts therein and drawing its own inferences if more than one inference is permissible. Also, when the facts permit the drawing of more than one inference, then it is for the jury to choose which one will be utilized and, if supported by substantial evidence, the jury's choice will be held by us to be conclusive.' " Reese v. Dow Chemical Company, Wyo., 728 P.2d 1118, 1120 (1986), quoting Crown Cork & Seal Company, Inc. v. Admiral Beverage Corporation, Wyo., 638 P.2d 1272, 1274-75 (1982).

While recognizing the existence of these standards of review, appellants argue that, in the present case, the jury's finding that appellee's negligence was not the proximate cause of the accident is not supported by even a scintilla of evidence and that, even upon viewing the evidence in the light most favorable to appellee, the evidence supports the conclusion that appellee's negligence was a proximate cause of the accident. More specifically, appellants claim that, because the jury found that Ted Harmon was not negligent, we must assume he acted with due care and would have seen and avoided Hunting had it not been for the negligence of appellee in failing to properly remove the snowbanks.

"Proximate cause means that the accident or injury must be the natural and probable consequence of the act of negligence. The law does not charge a person with all the consequences of a wrongful act, but ignores remote causes and looks only to the proximate cause." DeWald v. State, Wyo., 719 P.2d 643, 651 (1986) (citation omitted).

"Proximate cause is a question of fact to be determined by the trier of facts unless only one conclusion can be drawn from the evidence." Ely v. Kirk, Wyo., 707 P.2d 706, 711 (1985).

In the present case, the evidence presented was susceptible to more than one conclusion; more than one reasonable inference could be drawn from it. The testimony as to the height of the snowbanks and whether the snowbanks actually obscured visibility was contradictory. On the one hand, there was testimony that the snowbanks were eight feet high; on the other hand, there was testimony that they were only three feet high. Similarly, while there was testimony that the snowbanks obstructed visibility, Hunting testified at one point that she could see down Sixth Avenue and that she decided to proceed through the intersection only after she had full clear visibility. In addition, Ted Harmon testified that Hunting proceeded through the intersection without looking in his direction. On the basis of this testimony, we are not prepared to say that the jury's finding that appellee's negligence was not the proximate cause of the accident is unsupported by substantial evidence. That we might have reached a different result is not grounds for overturning a jury verdict. DeJulio v. Foster, supra.

II

Appellants also contend that the district court erred in instructing the jury and allowing counsel for appellee to comment on the effect of joint and several liability. The district court gave the following instruction:

"INSTRUCTION NO. 16a

"This case must be determined on the basis of comparative negligence of the parties involved in the occurrence. In deciding the case, you will need to know the meaning of the term 'negligence'.

"Negligence has been defined for you in earlier instructions.

"It will be necessary for you to determine the percentage of negligence, if any, of each of the parties involved in the occurrence. It also will be necessary for you to determine the amount of damages sustained by any party claiming damages.

"The law of Wyoming applicable to this case requires the Court to reduce the amount of damages you have awarded to any party by the percentage of negligence, if any, that you find is attributable to that party.

"The percentage of negligence of Ted Harmon, if any, will be compared to the negligence, if any, of the Town and Julia Hunting. If the negligence of the Town is equal to or less than the negligence of Harmon, the plaintiff will not recover damages from the Town. However, if the negligence of the Town is greater than the negligence of Harmon, the Plaintiffs will recover all of the damages to which they are entitled solely from the Town. The Court will reduce the amount of such damages which you have awarded by the percentage of negligence that you find attributable to Ted Harmon. In no event will the Plaintiffs be entitled to recover if Harmon's negligence is 50% or more."

Appellants do not contend that the instruction misstates the law; they contend that the instruction should not have been given at all. They claim that, in giving the instruction, the district court relied on the following statutory provision:

Section 1-1-109, W.S.1977. ¹

"(a) Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in...