John B. Roden, Jr., Inc. v. Davis

• Decision Date: 03 November 1969
• Docket Number: No. 3752,3752
• Citation: 460 P.2d 209
• Parties: JOHN B. RODEN, JR., INC., a Wyoming Corporation, Appellant (Defendant below), George Bohannon Transportation, Inc., a Wyoming Corporation (Defendant below), v. Harvey DAVIS and Dean Davis, also known as Harvey Dean Davis, and Harvey Dean Davis as Administrator of the Estate of Marjorie Faye Davis, Deceased, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 209

460 P.2d 209

JOHN B. RODEN, JR., INC., a Wyoming Corporation, Appellant (Defendant below) George Bohannon Transportation, Inc., a Wyoming Corporation (Defendant below), v. Harvey DAVIS and Dean Davis, also known as Harvey Dean Davis, and Harvey Dean Davis as Administrator of the Estate of Marjorie Faye Davis, Deceased, Appellees (Plaintiffs below).

No. 3752.

Supreme Court of Wyoming.

Nov. 3, 1969.

Rehearing Denied Dec. 3, 1969.

Wm. H. Brown, of Brown, Drew, Apostolos, Barton & Massey, Casper, for appellant.

Cecil K. Hughes, of Reynolds & Hughes, Sundance, G. L. Spence, Riverton, for appellees.

Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.

GRAY, Chief Justice, delivered the opinion of the court.

By this action Harvey Dean Davis, as administrator of the estate of his deceased wife, sought to recover damages against defendants for wrongful death; and as owner, together with his father, Harvey Davis, to recover damages to a dump truck caused by the collision of the truck with a cable stretched across a highway by defendants in their efforts to 'right' an overturned tank truck. The negligence charged by plaintiff was that defendants wrongfully, negligently, and carelessly obstructed the highway by the cable without any warning to indicate danger or without giving notice thereof to users of the highway. The defendants generally denied such charge and affirmatively alleged that decedent was guilty of contributory negligence and that such negligence was the sole proximate cause of the accident. The ultimate issues so framed with respect to liability were tried by the court without a jury and thereafter the trial judge entered findings of fact and conclusions of law determining that the corporate defendants and defendant John B. Roden, Jr., ¹ were negligent and jointly and severally liable to plaintiffs, and that decedent was not contributorily negligent. The issue of damages was then tried to a jury and damages fixed in the sum of $71,183.50 for the death of Mrs. Davis and in the sum of $2,060.95 for damages to the dump truck. Judgment was entered accordingly and upon denial of motions for new trial both corporate defendants appealed. The appeal of defendant George Bohannon Transportation, Inc., was not perfected; thus the only matter before us is the appeal of defendant John B. Roden, Jr., Inc., and that is limited to the trial judge's determination of liability and the denial of a motion for new trial.

The record discloses with little contradiction that the accident occurred soon after 8:00 a. m. on what was known as the 'Nine-Mile County Road,' which ran northerly a distance of some nine miles from the Kaycee-Sussex road in Johnson County, Wyoming. At the time the sun was not shining and the day was variously described as 'cloudy,' 'misty,' 'overcast,' 'hazy,' and 'dull.' The ground was damp from previous rainfall. For years the road had been a graded dirt road some 23 feet in width and elevated about 2 feet above the surface at the place where the accident occurred. The travel on the road was not heavy and consisted principally of vehicles going to and from a newly discovered oil field and by a few ranchers in the vicinity. For some 10 or 12 days prior to the accident the road was being graveled and at the scene of the accident, according to measurements taken by the highway patrolman, a 'windrow' of gravel occupied 10 feet of the road on the east side, which left 13 feet on the was side for movement of traffic, although some allowance had to be made for the soft shoulder. On the evening before the accident Cecil Rasberry was driving a tanker truck owned by the Roden corporation in a northerly direction on the lefthand or west side of the road, and about the time he reached the point of the accident the front wheel caught the soft shoulder and the truck 'flopped over' on its left side into the borrow pit. Early the next morning Glenn Williams arrived there with what was called a 'rig-up' truck belonging to the Bohannon corporation and which was equipped with a 'winch' and cable one inch in diameter on the rear. The winch and cable were to be used in righting the Roden truck and for that purpose Williams pulled his truck off the road on the east side, backed it up perpendicularly to that side of the road and the Roden truck on the west side, pulled the cable across the road to the Roden truck, and got back into his truck to wait for Roden and Rasberry. Soon thereafter Mr. Mosebrucker, driver of the first gravel-loaded dump truck through the scene of the accident, topped a hill approximately one-half mile south thereof, observed the overturned tanker truck and the 'rig-up' truck when about half way down the hill, started slowing up when he was within one-quarter mile of the trucks, and seeing the cable across the road and the Roden truck in the ditch 'stopped on the south side about fifty feet away from the wreck' and got out to see if anyone was hurt. After some delay he went on through, dumped his load, and testified that on the way back to the gravel pit he stopped Mr. Peterson, driver of the next dump truck, and warned him of the presence of the Roden truck and the 'winch truck' over the hill and to 'Be careful that cable is laying across, and he might have it stuck.' As Peterson came over the hill and approached the scene of the accident he saw two men on top of the Roden truck with the cable across the road and up over the Roden truck. He slowed down but did not stop and went on through on signal from Roden. On cross he said he was probably 20 to 25 years away when he saw the cable but then conceded that in a deposition he had previously said he first saw it 'from four to six hundred feet away.' The circumstances were the same when Mr. Watts, the next dump-truck driver, approached. He slowed down, came to a stop when he saw the cable about 50 feet away, then went through. All three of the dump-truck drivers mentioned said they had no difficulty in driving their loaded trucks through the area in which the accident occurred. Another witness, Mr. Skiles, a county commissioner who came upon the scene from the south after the accident, said he did not see the cable until he had stopped and was about 50 or 100 feet away. When asked on cross if he could have seen the cable before he got there he said he did not know.

John Lusher, the contractor on the gravel job, also approached the scene from the south after the accident, turned off the road about one-quarter mile from the accident, drove on the prairie until he was some 200 to 300 feet from the vehicles, and didn't see the cable 'until I walked up to it.'

The driver of the next loaded dump truck approaching the area was the decedent. When loaded the truck weighed approximately 41,000 lbs. This was her first job as the driver of a dump truck and she had been on the job some 10 or 12 days. She did not wear glasses and her eyesight was good. The speed at which the truck was being driven as decedent approached was estimated to be somewhere between 19 to 30 miles per hour, and according to Roden decedent did not slow up. There were no marks on the highway to indicate that the brakes had been applied. In the meantime Roden and Rasberry, the two men on the overturned Roden truck, had attached the cable to the truck and had climbed down. Rasberry stationed himself near the front and Roden at the rear. Roden signaled Williams to start 'winding' the winch. Normally the operation of righting the truck would require about one-half to one minute but after the truck had been raised to approximately a 45-degree angle with the cable stretched across the road at a height of 5 1/2 feet, the dome of the truck became entangled in a wire fence that was some 17 feet from the west edge of the road. Roden signaled Williams to stop 'winding,' crossed the fence, and started to untangle the wire when he heard a truck coming over the hill. He then started walking to the rear of the tank truck, and at the time the decedent's truck was one-quarter of a mile or a little less from the tank truck he thought she was going too fast under the conditions. He then crossed the fence, started running toward the road waving his arms, and when he got to the edge of the road the decedent's truck was about 50 yards from him. He did not get on the road for fear of getting run over. When decedent went by him he was standing some 30 feet from the cable and she was sitting 'perfectly rigid,' looking straight ahead. There was testimony that at the height at which decedent was sitting the background of the cable would be the 'dull green' landscape and not the horizon. When the truck decedent was driving came in contact with the cable it came across the hood, sheared through the cab, decapitated Mrs Davis, lodged a few feet into the bed of the truck on the left side, and 'flipped' the tank truck over on its right side, dragging it forward about 8 feet. It is undisputed that prior to the accident defendants failed to put out 'flags' or devices of any kind warning travelers on the road of the dangers ahead and in particular failed to attach to the taut cable completely obstructing the road any flag or sign warning of its presence even though 'flags' were readily available in their trucks.

The trial court in reaching its determination on the ultimate issue of liability found, among other things:

'1. The cable stretched across the road by the joint and several negligent acts of the defendants, and their employees, agents and servants, was not in plain sight, obvious, open or apparent to the decedent under the conditions then existing. The testimony of witnesses shows that the decedent was not driving at an excessive speed, did not slow down, and was looking straight ahead. This may be construed as evidence that she did not see the cable for the above reasons, together with other evidence as to the visibility of the cable.

'2. This was a road used by the public, all of which was...