Henderson v. Land, 1605

• Decision Date: 14 January 1931
• Docket Number: 1605
• Citation: 42 Wyo. 369,295 P. 271
• Parties: HENDERSON v. LAND
• Court: Wyoming Supreme Court

295 P. 271

42 Wyo. 369

HENDERSON v. LAND

No. 1605

Supreme Court of Wyoming

January 14, 1931

APPEAL from District Court, Laramie County; CYRUS O. BROWN, Judge.

Action by Elizabeth J. Henderson against Edwin Land. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

For the defendant and appellant there was a brief by George F. Guy of Cheyenne, Wyoming.

The court erred in refusing defendant's instruction No 1, Stratton v. Spencer, (Calif.) 197 P. 540; the instruction was approved in the foregoing case where the facts were almost identical with the facts in the case at bar. The entire question presented by this type of case, is whether or not defendant, having violated a traffic ordinance at the time of the happening of the accident, makes him guilty of prima facie negligence. The trial court erroneously assumed that defendant was negligent, which was error. Omera v. Swortfiguer, (Calif.) 214 P. 975. The case of Bone v. Yellow Cab Co., (Wash.) 225 P. 440, is analogous to the case at bar. That case was reversed by the Supreme Court of Washington, on the ground that a sudden emergency occurred through no negligence of defendant, and that the accident occurred due to an effort on his part to avoid an injury. In this case defendant was confronted with a sudden emergency, and was endeavoring to avoid an accident.

For the plaintiff and respondent there was a brief by Lee and Lee, of Cheyenne, Wyoming.

The theory of sudden emergency advanced by defendant in his requested instruction, did not occur as shown by the evidence. Defendant also pleads contributory negligence thereby admitting negligence on his part, since there can not be contributory negligence on the part of plaintiff, in the absence of negligence on the part of defendant. 45 C. J. 943, note 45. The jury was instructed that there could be no recovery, unless plaintiff was free from negligence contributing to the injury; also that it was the duty of the plaintiff to use ordinary care for her protection, failing in which, she could not recover. 29 Cyc. 505-506. The evidence shows that at the time of the accident plaintiff was in full view of defendant, and running away from him, in front of his car. There was no negligence on the part of plaintiff in trying to escape. The refusal to give the instruction requested by defendant, was not error. Phifer v. Baker, 34 Wyo. 415; Merchants Natl. Bank v. Ayers, 37 Wyo. 136; First Natl. Bank v. Ford, 30 Wyo. 110; Kiesel v. Henecker, et al., 35 Wyo. 300.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This case, here by direct appeal, arose in consequence of injuries inflicted by an automobile driven by Edwin J. Land, the defendant below and appellant here, against the plaintiff and respondent Elizabeth J. Henderson as she was crossing O'Neil Street on her way along the north side of 25th Street at the intersection of the two streets in the city of Cheyenne.

Plaintiff's amended petition charged that the accident happened because the defendant negligently drove his car on the wrong side of the street and at an excessive rate of speed. The defense interposed was a general denial, with the assertion of contributory negligence on the part of the plaintiff. A jury trial resulted in a verdict and judgment in her favor, in a sum not so very greatly in excess of the amount claimed by her for medical and hospital expenses incurred in consequence of the injuries suffered.

While a number of errors were assigned in the specification of errors filed, only one has been argued in appellant's brief and consequently it alone can be considered by us. Automobile Insurance Co. v. Lloyd, 40 Wyo. 44, 273 P. 681, and cases cited.

The particular alleged error insisted upon is the trial court's refusal to give a requested instruction with reference to a sudden emergency confronting the defendant as the driver of the automobile, whereby in an effort to avoid injuring plaintiff he directed his vehicle to the wrong side of the street, and the court's failure thus to negative the inference of negligence arising from the fact that in departing from the proper side of the street he violated a traffic ordinance of the city of Cheyenne. It was agreed that the ordinance in question required that a person turning a corner at the intersection of streets with an automobile must make the turn in such a way that his car will be on the righthand side of the center of the street which he is entering.

Abstracting the record before us, defendant's version of the manner in which the accident took place is substantially this: I got in the car about seven o'clock March 5, 1927, and it was standing in front of my garage. I backed it out into the alley and proceeded down O'Neil Street. I was on the righthand side of the road. I first saw Mrs. Henderson when she was about the center of the road. "I was about, oh, twelve feet" from the cross walk when I first saw her. She was going west on the crosswalk on 25th Street. I brought the car to a complete stop when I saw her. She then stopped also. After she had stopped, I proceeded. She then took a step or two, as if to beat me across there, simultaneously with my "commencement forward." I swerved to the left to avoid striking her, inasmuch as she was going west. It was my plan to go behind her. She then got rattled and excited. I attempted to stop my car; my machine struck Mrs. Henderson. I moved in the same direction she did. She moved from the time she stopped until I hit her just the distance from the center of the street back to where she was hit.

As to the place where Mrs. Henderson was in the street at the time she was struck by defendant's car, the defendant testified:

"Q. You heard her testimony last night as to her position in the street when she was hit; was that approximately correct?

"A. It was, with the exception that she was a little farther out in the angle formed by the two intersections."

Mrs. Henderson had previously testified that she was...