Lane v. Gorman, 7786

• Decision Date: 18 June 1965
• Docket Number: 7787.,No. 7786,7786
• Citation: Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965)
• Parties: Horace A. LANE, Appellant, v. Glen GORMAN, d/b/a Gorman Chevrolet Co., and Keith Anderson, Appellees. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a corporation, Appellant, v. Horace A. LANE, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

347 F.2d 332 (1965)

Horace A. LANE, Appellant, v.Glen GORMAN, d/b/a Gorman Chevrolet Co., and Keith Anderson, Appellees.

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a corporation, Appellant, v.Horace A. LANE, Appellee.

Nos. 7786, 7787.

United States Court of Appeals Tenth Circuit.

June 18, 1965.

Byron Hirst, Cheyenne, Wyo. (Richard V. Thomas, of Hirst, Appelgate & Thomas, Cheyenne, Wyo., with him on the brief), for Horace A. Lane.

Kenneth M. Wormwood, of Wormwood, Wolvington, Renner & Dosh, Denver, Colo., for appelleesGlen Gorman, d/b/a Gorman Chevrolet Co., and Keith Anderson.

David Uchner and Harry Henderson, of Henderson, Godfrey, Kline & Uchner, Cheyenne, Wyo., for appellantChicago, B. & Q. R. Co.

Before LEWIS and SETH, Circuit Judges, and DOYLE, District Judge.

LEWIS, Circuit Judge.

These cases originated from a single complaint filed by plaintiff Lane in the District Court for the District of Wyoming wherein he sought joint and several recovery from the defendants Gorman-Anderson and the defendant railroad for injuries suffered in an automobile-truck collision which occurred upon an open highway in Wyoming.Anderson, an employee of Gorman, was the driver of the automobile; Lane, an employee of the railroad, was the driver of the truck.Plaintiff's claim against the defendants Gorman-Anderson was premised upon the alleged operational negligence of Anderson and included an allegation that Anderson had the last clear chance to avoid the collision.Plaintiff's claim against the railroad asserted a cause under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., through the furnishing to plaintiff of a defective truck.After joinder of issues, the causes were tried to a jury and resulted in a verdict favoring defendants Gorman-Anderson for no cause of action and a verdict favoring plaintiff Lane against the railroad.Damages were determined to be $52,562, reduced by fifty per cent in the verdict in accordance with the provisions of the F.E.L.A. because of plaintiff's contributory negligence.In case No. 7786, plaintiff Lane appeals from the jury's adverse verdict asserting error in the trial court's failure and refusal to instruct the jury upon the doctrine of last clear chance.In case No. 7787, the railroad appeals asserting different errors in the court's instructions, insufficient evidence to support the verdict, and the awarding of excessive damages.

On May 10, 1961, plaintiff was engaged in repair work on railroad bridges near Guernsey, Wyoming, and as part of his employment duties he drove a truck loaded with tools and equipment from one bridge site to another.Shortly before the subject collision he parked his truck near where he thought the next work area would be and got out to consult with other employees.He had parked the truck partly on the traveled portion of the highway.Then, in apparent realization that the position of his truck constituted a traffic hazard, he returned to the truck to move it completely off the highway.Almost immediately the truck was struck from the rear by the automobile driven by Anderson and plaintiff suffered the injuries complained of.

There is no appellate contention that the evidence was not sufficient to warrant a jury determination that the plaintiff Lane was negligent in the manner and place of his parking of the truck.And the diminution of the verdict against the railroad establishes that the jury did find Lane's conduct to be negligent.The issue, then, in the claim against Gorman-Anderson is whether other circumstances of the collision are such as to require consideration by the jury of the effect of Lane's negligence upon causation as that concept is recognized in Wyoming under the doctrine of last clear chance.In defining the principle of last clear chance, the Supreme Court of Wyoming, in Borzea v. Anselmi, 71 Wyo. 348, 258 P. 2d 796, 802, stated:

"The rule is well stated in the case of Dunn Bus Service v. McKinley, 130 Fla. 778, 178 So. 865 * * *: `"The party who last has a clear opportunity of avoiding an accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.Such is a simple statement of the doctrine of `the last clear chance.\' * * * It does not permit one to recover in spite of his contributory negligence, but merely operates to relieve the negligence of a plaintiff * * *, which would otherwise be regarded as contributory, from its character as such.This result it accomplishes by characterizing the negligence of the defendant, if it intervenes between the negligence of plaintiff * * * and the accident, as the sole proximate cause of the injury, and the plaintiff\'s antecedent negligence merely as a condition or remote cause."\'"

The Wyoming court also approved the definition of the rule stated in the Restatement of Torts, § 479, noting that a plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover if, immediately preceding the harm, the plaintiff cannot avoid it by exercise of reasonable vigilance and care and the defendant, after he discovered or should have discovered the plaintiff's peril, thereafter was negligent in failing to use reasonable care to avoid the harm.See alsoMcDowall v. Walters, Wyo., 360 P.2d 165, 168.

Applying these principles of Wyoming law to the evidentiary circumstances of the case at barwe conclude that the jury should have been instructed upon and...