Kinnison v. Houghton, 188-69.

• Decision Date: 30 October 1970
• Docket Number: No. 188-69.,188-69.
• Parties: Judy KINNISON, Administratrix of the Estate of Charles D. Kinnison, Deceased, and Administratrix of the Estate of James F. Kinnison, Deceased, and Judy Kinnison, Individually, Plaintiffs-Appellees, v. Robert E. HOUGHTON, Dale Manning and Nolte Bros. Truck Line, Inc., of Denver, Colorado, Jointly and Severally, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

432 F.2d 1274 (1970)

Judy KINNISON, Administratrix of the Estate of Charles D. Kinnison, Deceased, and Administratrix of the Estate of James F. Kinnison, Deceased, and Judy Kinnison, Individually, Plaintiffs-Appellees, v. Robert E. HOUGHTON, Dale Manning and Nolte Bros. Truck Line, Inc., of Denver, Colorado, Jointly and Severally, Defendants-Appellants.

No. 188-69.

United States Court of Appeals, Tenth Circuit.

October 30, 1970.

Vincent A. Ross, Cheyenne, Wyo., for plaintiffs-appellees.

A. Joseph Williams, Cheyenne, Wyo. (Guy, Williams, White & Mulvaney, Cheyenne, Wyo., on the brief) for defendants-appellants.

Before LEWIS, Chief Judge, and HILL and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appellee Judy Kinnison sued in the District of Wyoming for the wrongful deaths of her husband and infant son and for personal injuries to herself sustained in a collision between a tractor and semitrailer rig and the pickup in which the Kinnisons were traveling. The defendants were appellant Houghton, driver of the rig; appellant Manning, owner of the rig; and appellant Nolte Brothers' Truck Line, Inc., lessee of the rig. Manning counterclaimed for damages to his rig. It is conceded that if Houghton was guilty of negligence proximately causing the accident, then all of the defendants are liable.

The jury found for the defendants on the claim for Mr. Kinnison's death, thus implicitly finding him guilty of contributory negligence barring such recovery. It found for Mrs. Kinnison in the amount of $15,000 on her claim for wrongful death of the infant, and for her personally in the amount of $9,331.95 for her injuries. The verdict for the infant's death was reduced by remittitur to $7,500. No recovery was awarded on the counterclaim for the damages to the rig and it is not at issue here. From the judgments on the verdicts, the defendants appeal.

The facts relating to the accident are relatively simple. The collision occurred on Highway 30 at a point a few miles east of Cheyenne. At the point of collision the highway is two lane. It is 26 feet wide, divided by a white dashed line, with a 9 foot paved shoulder on the south side and a 6 foot paved shoulder on the north side. A solid yellow line is in the north, or westbound lane, beginning 540 feet east of the scene of the accident, and continuing 725 feet west of the scene of the accident, at which point the road becomes a four lane highway. The yellow line indicates a no-passing zone for traffic moving in a westward direction. There were no sight obstructions to westbound traffic approaching the four lane section of highway.

Mr. Kinnison was driving the pickup, in which Mrs. Kinnison and the child were passengers, in a westerly direction on the two lane road. He had gotten on the highway to travel west about a quarter of a mile and then to turn off to the Ocheskey residence where Mrs. Kinnison's parents lived. He slowed down to turn left or southward, into the private driveway leading to the Ocheskey residence. The rig driven by Houghton was following the pickup in the same westerly direction, and the Kinnisons had seen the semi-trailer before getting on the highway.

There was testimony by a passenger in a car following two or three vehicles behind Houghton that they were coming down a hill and that the semi driven by Houghton was in the left or passing lane for about 400 feet before the impact (which conflicted with other testimony that the semi-trailer pulled all the way into the eastbound lane when the pickup turned); that the Kinnison pickup was in the right lane; that the pickup slowed down and the semi-trailer rig was catching up with the pickup; and that the pickup then turned left. Houghton said the pickup pulled to the extreme right side of the road and slowed down; that he then pulled his rig to the left to pass; and that the pickup then made a sharp left turn before the collision.

The testimony of various witnesses was in conflict as to whether the Kinnison pickup pulled to the right before turning left. In any event the pickup did turn left and the pickup and semitrailer rig collided. There was no contradiction to the testimony of several witnesses that they did not see Kinnison signal before turning, and his pickup had no turn indicators. There was testimony that Houghton saw Kinnison's brake lights go on and that Houghton gave no audible signal that he was passing.

Thus, it is admitted that Houghton was passing the pickup in a no-passing zone marked by the yellow line, and the issues on this appeal focus on that fact. However, the case was not submitted to the jury on this allegation of negligence alone. Among other things, the charge included reference to claims of negligence for not maintaining a proper lookout and to the statute on giving passing warnings by horn signals. Therefore, several allegations of negligence were before the jury for consideration in arriving at its general verdicts involved on this appeal.

In connection with the no-passing zone issue, the Court permitted the Wyoming highway patrolman to testify that Houghton was passing in a no-passing zone. The jury was instructed that the superintendent of the State Highway Department was authorized to designate those portions of the highway where passing or driving to the left of the roadway would be hazardous and to mark such areas by appropriate signs. In so doing the trial court implicitly held that the statute on no-passing zones and the proof thereon were relevant for consideration. He instructed the jury that violation of a State statute is a circumstance which the jury could consider with all other circumstances in deciding whether Houghton was negligent.

Defendants urge three closely related objections to the testimony and instructions. First, they contend that the accident was not the type of hazard that the statute¹ and the no-passing zone were...