Jackson v. W. A. Norris, Inc.

• Decision Date: 22 August 1939
• Docket Number: 2108
• Citation: 54 Wyo. 403,93 P.2d 498
• Parties: JACKSON v. W. A. NORRIS, INC
• Court: Wyoming Supreme Court

93 P.2d 498

54 Wyo. 403

JACKSON v. W. A. NORRIS, INC

No. 2108

Supreme Court of Wyoming

August 22, 1939

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by H. C. Jackson against W. A. Norris, Inc., for injuries sustained in a collision between an automobile owned and driven by the plaintiff and a truck of the defendant. From a judgment for the plaintiff, defendant appeals.

Affirmed.

For the appellant, there was a brief by George F. Guy and Philip White of Cheyenne, and oral argument by Mr. Guy.

The rights, duties and liabilities of a highway contractor engaged in the construction of highways are of a different nature from the rules applicable to an ordinary traveler upon the highway, and surely, the rights and duties of a traveler using a highway, which he knows to be under construction with the difficulties, perils and obstacles connected with such construction, should be of a different nature than the requirements of due and ordinary care in the general conduct of affairs. The court erred in denying defendant's motion for a directed verdict. 45 C. J. § 292, p. 868. The evidence, including the plaintiff's, showed that he knew that he was driving over a road that was under the course of construction. 45 C. J. 877; Cunningham v. Clay Township, 79 P. 907; Alameda County v. Tieslau, 186 P. 398; Brett v. Frank & Co., 94 P. 1051; McGraw v. Friend Company, 52 P. 1009; Commary-Peterson v. Buckingham, 178 P. 318; Jones v. Hedges, 12 P.2d 111; Cullen v. Town of Littleton, 150 A. 109; Blashfield on Automobiles, Sec 3320; County Commissioners v. Pardee, 134 A. 33; Restatement of the Law of Torts, § 474; Christy v. Corporation, 27 P.2d 660. A person driving a car at night, in a dark place, so fast that he cannot stop or avoid an obstruction within the distance lighted by his lamps, is guilty of contributory negligence. West Coat Company v. White, 172 S.W. 301; O'Brien v. Alston, 213 P. 791. The court erred in refusing defendant's requested instructions. The court erred in refusing to receive in evidence defendant's contract with the Highway Department and the accompanying standard specifications. Davis v. Mellen, 182 P. 920, 7 A. L. R. 1194. Defendant was required by the specifications, which were a part of his construction contract, to run a sprinkling truck over the surface of the road under construction. In doing this, it was necessary for defendant's employees to operate the sprinkler in a manner that would cover all parts of the surface under construction, and in doing so, the sprinkling truck could not be operated without being at times over the center line of the highway. The failure of plaintiff to take this into account was contributory negligence. 45 C. J. § 292, p. 868, 877; Restatement of Law of Torts, § 474. In the case at bar, the evidence shows that plaintiff's own misconduct was the proximate cause of the accident, and that the defendant's operation of its truck on the left side of the road was not the proximate cause; also that the plaintiff's acts, coupled with the plaintiff's disregard of the condition of the highway was the proximate cause of the accident. The evidence showed that plaintiff was driving at a speed in excess of thirty-five miles per hour in violation of § 72-203, R. S. 1931. Law v. Asphalt Paving Company (Iowa) 7 A. L. R. 1191; Keeley v. Shanley, 140 P. 213. Neither Mr. Sample nor Mr. Jaycox had any opportunity to move the truck to the right hand side of the road, when the plaintiff appeared driving at a speed of fifty miles per hour or more. Jackson, the plaintiff, had the last clear chance to avoid the injury of which he is now complaining. Blashfield on Automobile Law, § 2801; McNamara v. Rainey Company, 123 S.E. 515. The evidence in the case shows that the real and approximate cause of the accident was the contributory negligence of plaintiff in driving upon a highway after dark, at a rate of speed in violation of the statutory limits, in spite of the obvious condition of the road and the numerous warning signs posted along the same. The court committed prejudicial error in refusing to properly define the appellant's legal status, and its right to occupy the roadway as a highway construction contractor. The trial court likewise committed prejudicial error in its refusal to entertain appellant's contention that plaintiff had the "last clear chance" to avoid the accident. The judgment below should be reversed.

For the respondent, there was a brief and oral argument by Edwin V. Magagna of Rock Springs, Wyoming.

It is admitted that plaintiff was driving on the right side of the road and defendant's truck was on the left side of the road. There is a conflict of evidence as to whether the lights on defendant's truck were burning. There were some signs on the road. Plaintiff had a right to assume that whatever construction work there was being done would be performed in a safe manner. Bowers v. Foster, 278 P. 1072. There was sufficient conflict in the evidence for this case to go to the jury. Hone v. Mammoth Min. Co., 75 P. 30; Loney v. Laramie Auto Company (Wyo.) 255 P. 351; Hines v. Sweeney (Wyo.) 201 P. 165. A highway contractor carries the same liability as other persons using the highway. For that reason, there was no error in excluding the specifications of defendant's contract. 5 Blashfield, § 3209. Instruction 7 given by the court, that a road contractor is governed by the ordinary rules of negligence, was a correct statement of the law. We do not believe that the doctrine of Last Clear Chance applies to this case under the facts. The judgment of the court below should be affirmed.

Before Riner, C. J.; Kimball, J.; and Burgess, District Judge. KIMBALL, J., and BURGESS, D. J., concur.

OPINION

RINER, Chief Justice.

The plaintiff and respondent, Jackson, obtained a judgment, entered upon the verdict of a jury, in his favor in the District Court of Laramie County, and against the defendant and appellant, W. A. Norris, Inc. The parties will usually be referred to hereinafter as "plaintiff" and "defendant," as aligned in the District Court. The litigation grew out of an automobile collision between two motor vehicles, the one owned and driven by the plaintiff, the other a truck owned by the defendant and operated by one of its employees. The essential facts are not greatly in dispute, and would seem to be as follows:

The defendant is a corporation organized under Wyoming law, and was on August 21st, 1937, engaged in highway construction work under a contract between it and the State of Wyoming through the State Highway Department, for "base course surfacing and oil treatment" of some 28 miles of the Pinedale-Rock Springs public highway. The defendant had established a construction camp about 15 miles south of Pinedale not far from a bridge over the East Fork of Green River. The accident presently to be mentioned happened approximately 3 1/2 miles in a southerly direction from this bridge on the highway aforementioned. The entire highway from Pinedale to Rock Springs was at the time open to the public for traffic. But there appear to have been numerous special signs indicating construction work on the highway northerly towards Pinedale from the bridge aforesaid. However, between this bridge and place where the accident occurred there were none of them.

Involved in the construction thus contracted for was a requirement that the road-bed of the highway should be sprinkled with water. About ten o'clock in the evening of the date last mentioned the defendant's truck, which carried water in a tank affixed thereto, was driven to the point on the highway referred to above. The truck was turned around at this point, and one, Jaycox, the driver thereof, went around behind it to turn on the water through the spray bar. At this time the truck was admittedly on the westerly, or wrong, side of the highway from the standpoint of one motoring southerly thereon. This was necessary, the driver of the truck stated in his testimony, so "We could get closer to the shoulder of the road." In the truck's cab at this time was another of the defendant's employees, Don Sample, who had accompanied the driver on this trip to "see what was going on," and who remained in the cab of the truck until after the accident. As to whether the truck's lights were in use then, the testimony in the record is in conflict. The plaintiff and several of his witnesses state they were not, while some of the defendant's witnesses, including the driver of the truck, maintained they were, and so testified. While the truck driver was turning his vehicle around he noticed automobile lights approaching on the highway from the north and about a mile away, but evidently paid no further attention to the matter.

Plaintiff a salesman of automobile supplies, on the night in question was driving his motor car from Pinedale southerly along the highway aforesaid, his destination being Rock Springs. When he reached the point on the highway already mentioned as 3 1/2 miles southerly from the bridge aforesaid, his car collided with the sprinkling truck of the defendant. According to plaintiff's testimony, it appears that plaintiff was driving between 40 and 50 miles per hour when he came over a knoll approximately 200 or 220 feet from the truck, when he saw it for the first time; that he could not then tell whether the truck was or was not moving; that there were no lights or flares by which to tell it was there; that he pulled his car to the extreme right of the road and "in fact started to go off into the barrow pit and then pulled back into the road"; that the collision then immediately took place "head on"; that he had previously made an attempt to stop and did not know how fast he was moving when he struck the...