Hawkins v. Loffland Bros. Co., 2542

• Decision Date: 18 November 1952
• Docket Number: No. 2542,2542
• Citation: Hawkins v. Loffland Bros. Co., 250 P.2d 498, 70 Wyo. 366 (Wyo. 1952)
• Parties: HAWKINS, v. LOFFLAND BROS. CO.
• Court: Wyoming Supreme Court

Page 498

250 P.2d 498

70 Wyo. 366

HAWKINS, v. LOFFLAND BROS. CO.

No. 2542.

Supreme Court of Wyoming.

Nov. 18, 1952.

Rehearing Denied Feb. 17, 1953.

Edward E. Murane and R. R. Bostwick, Casper, for appellant.

William, H. Brown Jr., Casper, for respondent.

RINER, Justice.

Beulah Hawkins, administratrix of the estate of J. G. Hawkins, deceased, as plaintiff filed an action in the district court of Natrona County against Loffland Brothers Company, a corporation, as defendant. The case arose in consequence of a collision between an automobile driven by Hawkins and a truck-tractor and semi-trailer owned by the defendant. Plaintiff obtained a jury's verdict against said defendant upon which the court entered a judgment in her favor. It is from that judgment this appeal is prosecuted. The plaintiff will be hereinafter usually referred to as respondent and defendant as appellant.

The collision occurred after nightfall on September 20, 1950, about 14 to 16 miles north of the city of Casper, Wyoming, on U. S. highway 87. Hawkins suffered injuries in the collision from which he died before he could be moved from the scene of the accident.

The action is grounded on the alleged negligence of the driver of defendant's vehicle, one Norman Patton. The allegations of plaintiff's petition regarding the matter of negligence are found in paragraphs 4 and 5 thereof and are verbatim as follows:

'That said truck and semi-trailer was, on said date, being driven southerly toward Casper, Wyoming, on U. S. Highway Number 87 at a point approximately sixteen (16) miles north of Casper, Wyoming, and at about 7:30 o'clock in the evening of said day, at which time and place it was dark, the driver of Defendant's said truck and semi-trailer negligently and carelessly stopped the same on the main travelled portion of said highway at which time there were no tail lights or clearance lights illuminated on said trailer as required by law, nor was there any other kind of light or illumination to warn vehicles approaching from the rear of the presence of said truck and trailer and the said Defendant, by and through its driver permitted said truck and trailer to stand on said highway after dark without any rear lights whatsoever and without exhibiting flars (flares) as required by law. That the negligence and carelessness of stopping said vehicle as aforesaid and the hazard to other persons lawfully using said highway was increased by the fact that said truck was stopped on a portion of said road just beyond a hill which further obscured the vision and visibility of the truck to persons approaching the same from the north so that the range of visibility within the headlights of an approaching vehicle travelling in the same direction as that in which Defendant's truck was headed was greatly limited and reduced. That the increased or aggravated danger of parking said truck after dark and without lights by reason of the terrain at the point where said truck was parked was clearly apparent and visible to the driver of Defendant's vehicle. That at the time and place above mentioned the said decedent, J. G. Hawkins, was driving a 1949 Chevrolet coupe northerly on said highway in the same direction as that of the Defendant's vehicle at which time the said Hawkins was operating his vehicle in a careful and prudent manner and with proper lights. That because of the fact that Defendant's truck was negligently parked without lights on the highway at the place and under the circumstances above mentioned, the vehicle operated by said Hawkins ran into the rear of said truck and the collision of said vehicles inflicted injuries on the said Hawkins which resulted in his immediate death.

'5. That the death of said decedent was the direct and proximate result of the negligence of the Defendant and its employees.' (We have noted the conflicting allegations of plaintiff's initial pleading through the use of italics.)

The defendant's answer to these allegations of negligence on the part of the defendant was that it:

'4. Admits so much of Paragraph No. 4. of plaintiff's petition as alleges that an accident occurred on September 20, 1950, 'that defendant corporation was the owner and operator of a certain truck tractor and semi-trailer licensed as 1950 Wyoming Number 7T1421 being driven by Norman Patton' in the course of his employment in a southerly direction on Highway U.S. Number 87 sixteen miles north of Casper about 7:30 o'clock P.M. and that an accident occurred at that time, and that the vehicle operated by J. G. Hawkins, deceased, ran into the rear of said truck, and denies each and every allegation of negligence and carelessness contained in said Paragraph No. 4. of plaintiff's petition. Defendant further denies 'that said truck and semi-trailer was negligently and carelessly stopped on the main travel portion of said highway' and denies that 'there were no tail lights or clearance lights illuminated on said trailer nor any other kind of light or illumination' thereon. Defendant further denies that 'defendant permitted said truck and trailer to stand on said highway after dark without any rear lights whatsoever and without exhibiting flares as required by law,' defendant further denies 'that said truck was stopped on a portion of said road just beyond a hill which further obscured the vision and visibility of the truck to persons approaching the same from the north.' Defendant further denies that there was any 'increased or aggravated danger of parking said truck after dark and without lights by reason of the terrain at the point where said truck was parked.' Defendant further denies that said J. G. Hawkins, deceased, was driving 'in a careful and prudent manner.' Defendant denies 'that defendant's truck was negligently parked without lights on the highway' as alleged by plaintiff.'

As defendant's affirmative defense to plaintiff's petition defendant's answer also stated in its second, third and fourth paragraphs:

'2. That defendant's driver, Norman Patton, parked defendant's vehicle off the main travel portion of the Highway U. S. Number 87 approximately sixteen miles north of Casper because of a mechanical failure of lights and thereafter immediately placed a light on the rear of said truck and that said light was on the rear of said truck at the time the accident occurred. That defendant's driver, Norman Patton, and his helper were preparing to place flares on the highway when said accident occurred and that the reason said flares were not on the road was that defendant's driver had not had time to do so before J. G. Hawkins deceased, while driving a Chevrolet coupe in a southerly direction and in a negligent and careless manner and without due circumspecttion and observance collided with the rear of defendant's vehicle.

'3. That J. G. Hawkins, deceased, was driving at a speed in excess of sixty miles per hour after dark and without proper caution and thereby collided with defendant's vehicle.

'4. That the proximate cause of said accident was the negligence and carelessness of J. G. Hawkins, deceased, as more particularly alleged aforesaid.'

For defendant's second affirmative defense it reincorporated all the allegations contained in paragraphs 1, 2 and 3 of its first affirmative defense and its paragraph '2' averred:

'2. That if defendant's driver was in any way negligent in the stopping of his vehicle on Highway U. S. Number 87 approximately sixteen miles north of Casper as more particularly alleged in plaintiff's petition, that the negligent and careless operation of a certain Chevrolet coupe by J. G. Hawkins, deceased, contributed to said accident.'

The reply of plaintiff to defendant's answer denied as follows:

'each and every allegation constituting new matter contained in said Answer, or any part thereof.'

The confused state of the allegations appearing in plaintiff's petition would seem to have been cured both by defendant's answer and the proofs submitted in the case. We shall, therefore, take it as an established fact in the case that both defendant's vehicle and the automobile of J. G. Hawkins had each been proceeding in a southerly direction towards the city of Casper when the accident occurred. Defendant, in the course of the trial, made two motions for a directed verdict, one at the close of plaintiff's case which reads as follows:

'* * * at the close of the plaintiff's case the defendant moves the Court for a directed verdict for the reason and upon the following grounds: That the plaintiff has failed to show any negligence on the part of the defendant Loffland Brothers Company; that the plaintiff has failed to substantiate the allegations of negligence set forth in her petition; that the testimony submitted by the plaintiff shows beyond a question of a doubt the contributory negligence of the deceased Hawkins, driver of the vehicle a '49 Chevrolet that ran into the rear of the Loffland Brothers truck and trailer.

'The evidence conclusively shows the speedometer reading of between 70 and 75, terrific speed as evidenced by the damage done to the truck and the car. The fact that there were no skid marks of any kind indicating the application of brakes by the car driven by Mr. Hawkins, the fact that there was evidence of the use of beer as testified to by Patrolman Collier, marks on the can still being noticeable at the time Collier arrived at the scene of the accident.

'The evidence further shows by the evidence submitted by the plaintiff that the employees of Loffland Brothers did all that any reasonable man would have done under the circumstances and that there was no negligence on their part that there was more than 20 feet of surface of the highway left for passing traffic.

'The evidence submitted by the plaintiff further showed that the driver of the Loffland truck, Patton, stopped the truck promptly and immediately when he discovered the condition of the lights on the trailer and that he pulled as far to the...