Macy v. Billings
| Decision Date | 08 November 1955 |
| Docket Number | No. 2695,2695 |
| Citation | 74 Wyo. 404,289 P.2d 422 |
| Parties | Charles S. MACY, Plaintiff and Respondent, v. Ira W. BILLINGS, Defendant and Appellant. |
| Court | Wyoming Supreme Court |
C. L. Bates, Rawlins, for appellant.
William N. Brimmer, Rawlins, for respondent.
This is an action for damages brought by plaintiff against defendant arising out of an automobile collision, the plaintiff alleging as one of the reasons for recovery that defendant traveled on the wrong side of the road at the time of the collision. The case was tried to the court without a jury. The court made a general finding in favor of the plaintiff and against the defendant and rendered judgment against defendant for $825.89 and costs. From that judgment the defendant has appealed.
The collision occurred about twenty miles south of Creston Junction in Carbon county, Wyoming. The plaintiff was driving a Buick automobile and was traveling south. The defendant was driving a Ford pickup truck and was traveling north. The oiled part of the road was eighteen feet in width. There was snow on the road as well as in the borrow pits. It was snowing and the visibility was poor. There were bare spots, however, along the edges of the road by which the road itself could be noticed. The plaintiff testified that he drove within a few inches of the west side of the road[74 Wyo. 409] --his own side; that he saw the pickup truck when it was within about twenty-five feet of him; that he then put on the brakes, slowed his car; but that his car collided with the truck, smashing the front part of his car, and causing other damages. The defendant testified that while he was traveling north he met a snowplow traveling south which threw up a cloud of snow making it impossible for him to see; that he passed the snowplow safely; that he continued his path straight ahead; that almost immediately after the snowplow had passed him, he saw the Buick car and the collision occurred; that in view of the fact that he safely passed the snowplow and continued straight on his way, he was on his right side of the road--in other words that the Buick car was on the wrong side of the road. He was corroborated by the witness Hays and to some extent by the witness Jones. Plaintiff denied that any snowplow was immediately ahead of him. That is corroborated by the highway patrolman.
However, aside from the fact that here appears a conflict of testimony, the verity of which was to be resolved by the trial court, the contention of the defendant is contradicted by a substantially uncontroverted physical fact. Highway patrolman Peterson was called and arrived at the scene of the collision within about half an hour thereafter. According to his testimony, which is not contradicted, both cars were then standing in plaintiff's lane of travel--the west lane; they were still together, interlocked, and had to be pulled apart. The Prestone which had leaked from both cars was about in the center of the west lane; the pickup truck, standing somewhat at an angle, had to be moved only a few feet in order to clear the east lane of traffic for other cars to pass. This would seem to show conclusively that the defendant's truck was not in its proper lane of traffic.
Counsel for the defendant contends that the latter was confronted by an emergency which he met the best way he could, and that the mere fact that he may have swerved somewhat to his left cannot alone hold him responsible. He cites a note in 6 A.L.R. 680 which states:
'* * * an automobile driver, who by the negligence of another and not by his own negligence is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice.'
It is doubtful that the note is applicable here since it does not appear that the driver of the snowplow was negligent, and according to the court's finding, the plaintiff was not negligent. Counsel also cites the case of Johnson v. Prideaux, 176 Wis. 375, 187 N.W. 207, where it was held that when the defendant was enveloped by a cloud of dust and brought his car to a stop as soon as possible but inadvertently swerved his car into the wrong lane of travel that itself did not make him liable since he met the emergency as best he could. In that case it appears that the plaintiff saw that defendant was enveloped by a cloud of dust but continued driving until he hit the defendant's car. The facts in this case are not the same. We fully recognized the rule of a sudden emergency in the case of Wells v. McKenzie, 50 Wyo. 412, 62 P.2d 305. And it may be that if the defendant's testimony were true there might have been some grounds for the trial court to absolve him from responsibility for the collision. But the court evidently did not credit that testimony, and we are bound by that holding. The physical facts would seem to indicate that the defendant did not slightly 'swerve' from his course by reason of an emergency as counsel for defendant would have us believe but that he was traveling on the wrong side of the road at the time of the collision as well as before...
To continue reading
Request your trial
-
Kleinsasser v. Gross
...N.D., 91 N.W.2d 623; Bischoff v. Koenig, N.D., 100 N.W.2d 159; Dickman v. Struble, 104 Ohio App. 44, 146 N.E.2d 636; Macy v. Billings, 74 Wyo. 404, 289 P.2d 422 (dictum); Danner v. Walters, 154 Neb. 506, 48 N.W.2d 635. The memorandum decision of the trial judge filed under SDC 1960 Supp. 33......
-
Fegler v. Brodie
...rarely raised because we had some difficulty finding a case so stating, except in very broad terms as foregone. In Macy v. Billings, Wyo.1955, 74 Wyo. 404, 289 P.2d 422, a highway patrolman testified that the defendant was the cause of a collision. This court held that to be the ultimate fa......
-
Logan v. Pacific Intermountain Exp. Co.
...these matters rest largely with the discretion of the trial court. Culver v. Sekulich, 80 Wyo. 437, 344 P.2d 146, 152; Macy v. Billings, 74 Wyo. 404, 289 P.2d 422, 424. Regardless of the modest statement of the witness that he was 'not an expert on collisions,' there was ample to support th......
-
Krahn v. Pierce
...valuation testimony, rather strictly applied the rule with respect to expert testimony invading the province of the jury. Macy v. Billings, 74 Who. 404, 289 P.2d 422; State ex rel. Kirk v, Gail, Who., 373 P.2d 955, 957; Taylor v. MacDonald, Wyo., 409 P.2d 762, 764. The rule has its roots in......