Holstedt v. Neighbors

• Decision Date: 19 December 1962
• Docket Number: No. 3082,3082
• Citation: 377 P.2d 181
• Parties: Robert E. HOLSTEDT, Administrator of the Estate of Pamela Jean Cole, Appellant (Plaintiff below), v. Harriet Churchill NEIGHBORS, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 181

377 P.2d 181

Robert E. HOLSTEDT, Administrator of the Estate of Pamela Jean Cole, Appellant (Plaintiff below), v. Harriet Churchill NEIGHBORS, Appellee (Defendant below).

No. 3082.

Supreme Court of Wyoming.

Dec. 19, 1962.

Robert E. Holstedt and Holstedt & Schwartz, Sheridan, for appellant.

Lawrence A. Yonkee and Redle & Redle, Sheridan, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This is a wrongful death case in which a directed verdict was granted by the trial court because it considered the evidence insufficient to submit to the jury.

Action was brought by Robert E. Holstedt as administrator of the estate of Pamela Jean Cole who was killed when struck by an automobile operated by Harriet Churchill Neighbors, defendant. The child was three and one-half years old. At the time of the accident Mrs. Neighbors was backing an automobile inside a motel courtyard. During the backing her vehicle struck the child who was a guest at the motel, and the child died the same day from injuries received.

Pamela was struck by the back end of Mrs. Neighbors' car, 'towards the left part of her car.' According to Mrs. Neighbors, she had spent much time around the motel during 18 years and children played in the motel courtyard from time to time.

Our only question on appeal is whether any substantial evidence of negligence on the part of defendant was offered by plaintiff. The principal point in dispute is whether Mrs. Neighbors used due care by looking before she backed and by keeping a proper lookout as she backed. We therefore confine ourselves to evidence which tends to show whether she in fact looked and saw what there was for her to see.

It goes without saying that, in passing upon a motion for a directed verdict, the evidence must be taken in the light most favorable to plaintiff, and we must accept the whole body of evidence in the strongest way it reasonably can be interpreted in support of plaintiff's claim. Cheney v. Wheeler, 122 Vt. 295, 170 A.2d 642, 643; Parker v. Gunther, 122 Vt. 68, 164 A.2d 152, 153; Geiger v. Schneyer, 398 Pa. 69, 157 A.2d 56, 57; 2 B Barron & Holtzoff, Federal Practice and Procedure, § 1075, p. 378 (1961).

Mrs. Marie Cole and her three children were staying in a cabin at the motel. The youngest child was Pamela. The oldest was Diane, eight years of age, and the third child was Tommy, six years of age. All three children went outside their cabin and walked around in front of the cabin with Diane and Tommy holding Pamela by her hands. Pamela got some mud on her shoes.

Their mother relates she saw her children in front of a nearby open cabin door and that Pamela was constantly by Diane and Tommy. Diane explained Pamela said she wanted to clean off her shoes, so Diane let go of Pamela who then went over to the place where she was struck, and Diane explained that Pamela was going to get a stick to clean off her shoes. Diane said that after she let go of Pamela, 'just a few seconds later, I heard her scream - - - just a couple of seconds.' When Diane heard Pamela scream she turned around and saw Pamela half under Mrs. Neighbors' car. On cross-examination Diane was asked if it were not true that Pamela had gone beyond Mrs. Neighbors' car and toward the left part of it before she was struck, to which Diane answered 'she hadn't had time to go any farther than that.'

In this connection, the child's mother testified that the accident happened immediately after she saw the three children together in a safe place alongside the building and next to their cabin, and she emphasized the shortness of the time interval by saying she had just turned from the window to sit on the bed and that 'I just hit that bed when I heard this screech.'

Mrs. Neighbors, called as an adverse witness, related she was about to use her son's car which was parked in the courtyard and behind an adjacent service station; that it was necessary to move her father's car which was parked behind her son's car; that she first placed two sacks of groceries in her son's car and then got into her father's car; that she noticed 'two children' playing in front of a cabin numbered six; that she backed her father's car to the north, and faced it by going forward in a westerly direction, which would be toward the motel; that the children then, 'were right there in front of me'; that she then got into her son's car and looked around because she knew 'two' children were over in front of cabin six and she looked to the sides 'and they were still there' in front of cabin six; and the witness stated 'and then I swing around and looked out the back, as I always do as I'm backing.'

An examination of pictures and a diagram in evidence reveals cabin six was to the northwest and at a diagonal angle of approximately 45~ to the right and rear from where Mrs. Neighbors placed the original location of the accident vehicle. It therefore seems fair to say the children would have been visible to Mrs. Neighbors as she looked over her right shoulder, especially as she testified she was looking over her right shoulder all the time when she was backing. Mrs. Neighbors further testified that as she was backing she heard a scream; that she stopped the car, got out and rushed to the back of the car; and that when she got around to the back of the car, 'the two children that had been playing in front of Cabin 6' were there, 'and the little girl--there was a little girl there that they were helping up off the ground.'

From the diagram and pictures introduced in evidence, and according to her testimony, it appears that the left rear portion of Mrs. Neighbors' car came to rest approximately 75 feet east and 50 feet south of the point at which Pamela had left her sister. Mathematically, this made the shortest intervening distance about 90 feet. It also appears from her testimony and from the diagram and pictures in evidence that Mrs. Neighbors backed the accident vehicle 15 to 20 feet.

In Price's Estate v. Rosen, 50 Luz.Leg.Reg. (Pa.) 247, 251, it was held that running down a child on an unobstructed highway in broad daylight is evidence of negligence unless the child suddenly darted in front of the car. If Pamela traveled by foot from where she left her sister and brother, a distance of not less than 90 feet across an open courtyard, while Mrs. Neighbors backed only 15 to 20 feet, the possibility that the child darted suddenly and unexpectedly behind the car is eliminated.

The mere fact, standing alone, that the vehicle hit the child inside an open courtyard without the driver realizing the child was present in the courtyard is sufficient to question the driver's insistence that she was looking to the rear and right rear as she backed. Such a question presented an issue of fact to be determined by a jury. As stated in Grayson v. Yarbrough, 103 Ga.App. 243, 119 S.E.2d 41, 44, direct testimony may be disproved by circumstances inconsistent with it.

Significantly, in the Yarbrough case defendant-Grayson contended, much as Mrs. Neighbors contends in the case at bar, that defendant was not negligent because no witness contradicted his testimony. The court said the contention was not meritorious because if the story of the relatives were believed by the jury, the defendant could have seen the child before he ran into him. Likewise, if the jury in this case believed Mrs. Cole and Diane, then Mrs. Neighbors could have seen the child before she ran into her, had she looked.

The testimony of the child's mother and sister, coupled with the physical conditions portrayed, tends to contradict the driver's statement that she looked and saw only two children in the courtyard or that there were only two children to be seen, had she in fact looked, during the time she moved her father's car and then backed the accident car.

Hildreth v. Key, Mo.App., 341 S.W.2d 601, 605-606, has to do with the death of a six-year-old child and the duty of a motorist who had a clear and unobstructed view of the walkway on which the child was playing. A number of authorities are cited in that case for the statement that where one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed. Thus, the opinion states, although defendant-Key said he had looked, his failure to see what was plainly visible constituted negligence, as much so as if he had not looked at all.

As set out in 1 (Part 2) Blashfield, Cyclopedia of Automobile Law and Practice, § 681, p. 209 (Perm.Ed., 1960 Cumulative Pocket Part), and approved by us in Mc-Dowall v. Walters, Wyo., 360 P.2d 165, 169, 361 P.2d 528:

'It has been stated that failure to look at all constitutes negligence as a matter of law while the question as to whether one who looks sees all that he should see is one of fact for the jury.'

In the McDowall case we also said, on the authority of Blashfield, that a motorist cannot say that he looked, but failed to see what was clearly visible, or could have been seen by the exercise of ordinary care.

According to the defendant's testimony in the instant case, after she came into the courtyard she first placed groceries in her son's car, then backed and reparked her father's car facing it to the west, after which she went back across the area to the accident vehicle and backed it out. If a jury elected to believe this testimony, it would realize that defendant had several moments to see the children and that during part of the time she...