Johnston v. Vukelic

• Decision Date: 24 January 1950
• Docket Number: No. 2393,2393
• Citation: 67 Wyo. 1,213 P.2d 925
• Parties: JOHNSTON, v. VUKELIC et ux.
• Court: Wyoming Supreme Court

Page 925

213 P.2d 925

67 Wyo. 1

JOHNSTON, v. VUKELIC et ux.

No. 2393.

Supreme Court of Wyoming.

Jan. 24, 1950.

C. A. Brimmer, Rawlins, C. L. Bates, Rawlins, for appellant.

John J. Hickey, Rawlins, for respondent.

KIMBALL, Justice.

The case involves a highway accident in which plaintiff, Joseph Johnston, a pedestrian, was injured by contact with an automobile driven by Thomas Vukelic, defendant. In plaintiff's action for damages, the trial, some five years after the accident, was to the court without a jury, and the judgment was for plaintiff and against the appealing defendant on a general finding.

We notice first a contention by appellant that the judgment is erroneous because of a disagreement between the allegations in the petition and the proof. Vukelic's wife was a co-defendant, and it was alleged in the petition that she 'as agent and servant and under the control and direction of her husband' was driving the automobile at the time of the accident which was caused by her various alleged negligent acts and omissions in operating the vehicle. The husband and wife filed a joint answer denying generally the allegations of the petition, and pleading that plaintiff's own negligence was a proximate cause of his injury. Early in the trial, both defendants were called as witnesses by plaintiff and examined 'as if under cross-examination,' as permitted by statute. § 3-2604, C.S.1945. Each testified that Thomas Vukelic was driving the car, and there was no substantial evidence to contradict them on the point. The judgment for plaintiff was against the husband alone. It seems reasonable to infer from the record that the two defendants were the only witnesses who knew that Thomas Vukelic was driving at the time of the accident, and that plaintiff's mistake in alleging that Mrs. Vukelic was driving was the result of an assumption based on the fact that it was she who was at the wheel when the car was driven away after the accident.

We cannot hold that this difference between allegation and proof was a failure of proof or even a material variance. The statute provides that there is a failure of proof when the allegation of the claim to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning. § 3-3203, C.S.1945. The plaintiff's grievance, of which defendants were fully apprised, was that he had been injured by the negligent driving of the automobile. The allegation that the wife was driving was not proved, and the judgment in her favor established that there was a failure of proof as to her. But we cannot hold that the variance between the allegation that appellant was directing and controlling the driver and the proof that he was the actual driver, was a failure of proof as to him. See Greenburg v. Gorvine, 279 Mass. 339, 181 N.E. 128; Trawick v. Chambliss, 42 Ga.App. 333, 156 S.E. 268; Avent v. Tucker, 188 Miss. 207, 194 So. 596, 601.

The statute declares that no variance between allegation and proof shall be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense. § 3-3201, C.S.1945. In this case there was no surprise unless to the plaintiff, and appellant makes no claim of prejudice in maintaining his defense on the merits. When a variance is immaterial the court may direct the fact to be found according to the evidence (§ 3-3203) and the judgment will not be disturbed because no formal amendment was made. Kuhn v. McKay, 7 Wyo. 42, 58, 49 P. 473, 51 P. 205; Chicago, B. & Q. R. R. Co. v. Pollock, 16 Wyo. 321, 329, 93 P. 847. Another statute (§ 3-1705) directs that: 'The court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.' See Claughton v. Johnson (on petition for rehearing), 47 Wyo. 536, 41 P.2d 527.

In this connection appellant cites cases holding, in effect, that where two defendants are joined in an action for the same injury a judgment against one and in favor of the other is inconsistent if the liability of one cannot exist without the liability of the other. See Restat.Torts, § 883; Restat.Judgments, § 106, Illustration 4g. That principle might have been applicable in the case at bar if the proof had been that the wife was the driver, as alleged in the petition, and the judgment in her favor had resulted from a finding that she was not negligent. References below to defendant will mean the appealing defendant.

Contentions that go to the merits require a consideration of the evidence bearing on questions: (1) of defendant's negligence, (2) of plaintiff's contributory negligence, and, if both were negligent, (3) defendant's liability under the last clear chance doctrine.

The collision was on the Lincoln highway where it runs east and west, level and straight, through the property of an oil refinery company in the town of Sinclair, formerly Parco. The refining plant, north of the highway, includes a structure called the 680 still. South of the still, 15 or 20 feet north of, and parallel with, the highway there is a wire fence in which there is a gate through which the still can be approached from the south. Some 100 feet or more south of the highway there is a warehouse. The collision occurred as plaintiff, shift foreman for the refinery company, was walking northwesterly from the warehouse, across the road toward the still. The Vukelic family (appellant, his wife and three children), in a Chevrolet 4-door sedan, were traveling east on way to their home at Omaha, Nebraska. The parents were on the front, the children on the rear seat.

Plaintiff, when asked a question about the 'street' at the place of the accident, said 'it is not a street, it is a highway,' evidently meaning that it lacked the usual features and surroundings of a city or town street. There was no evidence of curbs or sidewalks along it, or of intersecting streets or pedestrian crosswalks. Adjacent property evidently was not divided into blocks. The only nearby structures referred to were the 680 still and the warehouse. Between them there was no crosswalk or beaten path, and the testimony indicates that the persons who had occasion to cross the road at that place were the plaintiff and other refinery employees (one witness said foremen only) who had business at the warehouse. Plaintiff testified that he crossed there four or five times a month. The roadway was oil-surfaced and free of defects. Its width was not proved.

The time of the accident was 11 o'clock in the forenoon of an August day bright with sunshine. Conditions affecting visibility were perfect. Motor traffic was light. Defendant's car and one being driven in the other direction by witness Edmonson were the only vehicles mentioned as having been on the roadway at the time and place of collision.

Plaintiff was fifty years of age, intelligent, physically capable and thoroughly familiar with the place where he was injured. By the collision he was knocked unconscious, and on the trial testified that he had no recollection of anything that happened from the time he was at the warehouse until he regained consciousness in a hospital.

The collision was seen by three refinery employees who were witnesses for plaintiff. We shall lump their testimony in order to state briefly the facts that seem material on the negligence issues, as related by one or more of them. They were working near the 680 still, about 80 feet north of the place of the collision. They saw the defendant's car coming from the west and estimated its speed, at from 30 to 40 miles an hour. The driver was 'looking up at the refinery, north of the highway.' The saw plaintiff walking northwesterly from the warehouse toward the still. He continued to walk, and the car continued straight ahead, until the impact which was at the right front fender of the car. Plaintiff seemed to come up over the hood or fender of the car and hit the right-hand side of the windshield. He then 'toppled over' on the south side of the road where he lay unconscious just on the edge of the oiled surface until he was taken away in an ambulance. Plaintiff was walking just before the collision. He may have hesitated or lessened his speed as he stepped upon the roadway, but the witnesses could not tell which way he was looking. After the impact, the car was stopped within a distance estimated at from 10 to 30 feet.

Another plaintiff's witness, a garage mechanic who had examined appellant's car after the accident, testified that the right front fender and the right side of the windshield were damaged. The damage to the fender was a dent above the center of the right front wheel. He observed no damage to the hood.

There was a conflict in the testimony in regard to the speed of the automobile as it was driven to the place of the collision. Appellant, his wife and defense witness Edmonson testified that the speed was not greater than 20 miles an hour. On that point, the trial court had for consideration the undisputed testimony that appellant stopped the car thirty feet or two carlengths beyond the place of collision, and the opinion of a highway patrolman of more than five years experience who, as a witness for defendants, testified that under favorable conditions an automobile being driven at the rate of 20 miles an hour will travel 43 feet while the average driver is making an emergency stop.

Appellant and his wife denied that they were looking at the refinery north of the highway as they approached the place of the accident, but admitted that they were looking in that direction watching a man, called the tramp, walking east, and an automobile (evidently Edmonson's) driven west, on the north side of the highway. They testified that they did not see plaintiff approaching or on the highway, and that the impact...