Hester v. Coliseum Motor Co., 1587

• Decision Date: 10 March 1930
• Docket Number: 1587
• Citation: 285 P. 781,41 Wyo. 345
• Parties: HESTER v. COLISEUM MOTOR CO. [*]
• Court: Wyoming Supreme Court

285 P. 781

41 Wyo. 345

HESTER v. COLISEUM MOTOR CO. ^[*]

No. 1587

Supreme Court of Wyoming

March 10, 1930

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by Minnie G. Hester, as administratrix of the estate of Robert M. Gray, deceased, against the Coliseum Motor Company. To review a judgment entered on directed verdict for defendant, plaintiff brings error.

Reversed.

For the plaintiff in error there was a brief by Harold I. Bacheller I. G. McCann and R. R. Rose, all of Casper, and oral argument by Mr. Rose.

The cause of action is to be found in Sec. 5560 C. S., and brought pursuant to 5561 C. S. A personal representative may maintain the action. Mestas v. Coke Co., 12 Wyo 422; Collins v. Anderson, 37 Wyo. 275. See also Thorpe v. Coal Co., (Utah) 68 P. 145; Utah Savings Co. v. Coke Co., 73 P. 524; In re Lowham's Estate, 85 P. 445; Sou. P. R. R. Co. v. Wilson (Ariz.) 85 P. 401; De Amado v. Friedman, (Ariz.) 89 P. 588; Phoenix R. R. Co. v. Landis, 108 P. 247. Affirmed in 58 L.Ed. 377; Jacksonville Co. v. Boden, (Fla.) 15 L. R. A. (N. S.) 451; Florida R. R. Co. v. Hayes, Admr., 7 A. L. R. 1310; Demitri v. Cienci, 7 A. L. R. 1336; Carlson v. R. R. Co., (Ore.) 28 P. 497; Holmes v. R. R. Co., 5 F. 523. Recovery is permissible without reference to the question of dependency. Ladd v. Foster, 31 F. 827; Morris v. R. R. Co., 26 F. 22; Florida C. R. Co. v. Sullivan, 120 F. 799; Callison v. Brake, 129 F. 196; McCabe v. Co., 61 A. 667; Russell v. Co., (N. C.) 36 S.E. 191. The operation of a truck of not more than six feet in width on the public highway without a light on the left side, is negligence per se. Chap. 158, Sec. 8, Laws 1925; 2 Blashfield's Cyc. Auto Law, 1157-1158, and cases cited. Defendant's negligence was the proximate cause of Gray's death, as shown by the evidence. There was a question as to the cause of decedent's death, and it was error to direct a verdict. Collins v. Anderson, 37 Wyo. 275.

For the defendant in error there was a brief by Durham and Bacheller, of Casper, Wyoming, and Gillette and Clark, of Denver, Colorado, and oral argument by Henry M. Clark.

The absence of a light on the left of a truck exceeding six feet in width, is prima facie evidence of negligence. 1 Berry Automobiles (6th Ed. 1929) Sec. 226; Rule v. Co., 165 N.W. 883; Kopper v. Bernhardt, (N. J.) 103 A. 186. It has been held to be contributory negligence for a driver to collide with a wagon without lights when he could see ahead 200 feet and could have stopped. Holsaple v. Supts., (Mich.) 206 N.W. 529. Proof of accident even though defendant was violating the law raises no presumption that his negligence proximately caused the injury. 1 Berry, Automobiles (6th) page 199; Horwitz v. Gottwalt, (N. J. L.) 102 A. 930; Hardie v. Barrett, (Pa.) 101 A. 75; H. & B. R. Co. v. Berman, (Mo. App.) 245 S.W. 609. It is the universal rule of the road to drive on the right hand side. 1 Berry's Automobiles (6th Ed.) 241, Sec. 264. A car stopped on the highway and another approaching it from the front are "meeting." Roberts v. Phillips, (Ga.) 134 S.E. 837. A driver is charged with reasonable care but the greater the danger, the greater the degree of care required. Daughraty v. Tebbets, (Me.) 120 A. 354; Lorenz v. Tisdale, 111 N.Y.S. 173; Hughes v. Luther, (N. C.) 128 S.E. 145. Wyoming courts are not bound by Arizona decisions construing a statute adopted from Wyoming on the question of the right of recovery by personal representatives of the decedent. The decisions are in hopeless conflict on this question, and we do not feel that we should burden the court by an analyses of the question involved in a construction of the sections of the Wyoming statute under which the suit was brought. If we are right in our view of the question as argued, the cause will be affirmed, if not, it will be reversed for a new trial. We believe the direction of the verdict for the defendant is proper, plaintiff having failed to establish the necessary prerequisite that decedent's death was caused through negligence of defendant.

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

OPINION

RINER, Justice.

One Robert M. Gray was killed in an automobile collision on the Yellowstone Highway September 21, 1928, and an action was instituted in the District Court of Natrona County by his mother, as administratrix of his estate, to recover damages on account of his death under Section 5561, Compiled Statutes of Wyoming 1920. The Coliseum Motor Company, a corporation, was made defendant in the action. At the trial, upon the conclusion of plaintiff's evidence and upon motion of the defendant, the court directed the jury to return a verdict in the latter's favor, and judgment was thereafter accordingly entered upon this verdict that plaintiff take nothing by reason of her action. Plaintiff's motion for a new trial, based principally upon the alleged error of the court below in sustaining defendant's motion for a directed verdict, having been overruled, she has brought the case here for review by proceedings in error, assigning as error, in the usual manner, the overruling of her motion for a new trial. For the sake of convenience the parties will be referred to herein as the "plaintiff" and "defendant" respectively.

Plaintiff's petition, after alleging the institution of the action by her as administratrix of the estate of Robert M. Gray, deceased, and the corporate existence of the defendant, in substance alleges as follows: That on the date mentioned above, about 11:15 o'clock at night, an employee of the defendant was driving its Dodge truck, having a body 6 feet six and one-half inches in width, easterly along the highway about four and one-half miles west of Douglas, Wyoming, and was towing about two feet behind said truck a Chevrolet car, in such a way that the latter extended about one and one-half feet north into the highway; that the front end of the Chevrolet car was elevated about one and one-half feet above the highway; that defendant's employee negligently drove the Dodge truck to within about four feet of the rear end of a large gravel truck, standing in the highway either without lights or with defective and dim lights--the condition of said lights being known to said employee; that the headlights of the Dodge truck were unprovided with lenses, the reflectors thereof were rusty and dirty, and because of this and the position of the Dodge truck just behind the gravel truck, its headlights could not be seen for more than about five feet in advance of said lights; that defendant negligently failed to place a light on the left side of its truck body and operated the same without any such light, and that the lights from the headlamps of the Chevrolet car, by reason of its elevation above the highway, were thrown up and against the rear of the Dodge truck so that they could not be seen more than two or three feet in front of said lamps.

The pleading then avers that Robert M. Gray, as the guest of one Gidley, was riding in the rear seat of the latter's Hudson motor car, which was being driven in a westerly direction along the north side of the highway aforesaid at a speed not exceeding thirty miles per hour; that Gidley turned his car to the right to avoid collision with said gravel truck, and because of the defendant's negligence in driving the Dodge truck to a position just behind said gravel truck, in operating the Dodge truck with the lights in the aforesaid defective condition, in not exhibiting a light on the left side defining the limits of the body of the truck and in permitting the Chevrolet car to extend out into the highway with headlights obscured and deflected, as aforesaid, Gidley was unable to and did not see either the Dodge truck or the Chevrolet car and drove his Hudson automobile into these cars; and that because of the collision and defendant's negligence, the Hudson car was overturned and Robert M. Gray was killed--all to the plaintiff's damage in a claimed sum.

The defendant's answer in its first defense in general put in issue the several acts of negligence charged and denied that the width of the Dodge truck was as alleged in plaintiff's petition, that the Chevrolet extended north of that truck into the road, or that the lights on the gravel truck were not burning, or that they were defective. Defendant's pleading denies also that the lamps on the Dodge truck were defective. While admitting that the truck had no lights placed upon the sides of its body, denial is made that their absence caused or contributed to Gray's death. Admission is made that the beams of the Chevrolet lights were thrown upward and against the Dodge truck, but it is denied that their light was not visible no more than two or three feet in advance thereof. Briefly, as a second defense, it was alleged that the lights on both the Dodge truck and the Chevrolet car which was being towed, were of such intensity as to be visible at the usual distance to approaching motorists; it was also alleged that the driver of the Dodge truck saw the lights of an approaching automobile and in order to avoid possible collision, stopped upon the southerly edge of the highway behind a gravel truck which he then discovered standing with its right wheels upon the extreme outer edge of the highway; that the approaching car was driven by Gidley, with Robert M. Gray as a passenger, on the south side of the center line of the highway, and at the speed of approximately forty to fifty miles an hour; that as the Gidley car approached the parked cars it swerved first to the right or north side of the highway and then it swerved abruptly to the south and crashed into the sides of the Dodge truck and the Chevrolet, and at a distance of seventy-five to one hundred feet in the rear of...