O'Malley v. Eagan

• Decision Date: 21 September 1931
• Docket Number: 1677
• Citation: 2 P.2d 1063,43 Wyo. 233
• Parties: CARMA C. O'MALLEY, by next friend v. DAN EAGAN, ET AL
• Court: Wyoming Supreme Court

2 P.2d 1063

43 Wyo. 233

CARMA C. O'MALLEY, by next friend v. DAN EAGAN, ET AL

No. 1677

Supreme Court of Wyoming

September 21, 1931

APPEAL from the District Court, Sheridan County; JAMES H. BURGESS Judge.

Action by Carma C. O'Malley, a minor by Marie O'Malley, her next friend, against Dan Eagan and another for damages resulting from an automobile collision. From a judgment rendered in favor of defendant notwithstanding the verdict plaintiff appeals.

Affirmed.

For the appellant there was a brief by Bedford and Cobb, of Sheridan Wyoming, and an oral argument by Mr. William B. Cobb.

A court is not permitted to substitute its judgment for that of the jury upon questions of fact, where reasonable minds might differ. Horn v. State, 12 Wyo. 80 at 120; C. B. & Q. R. R. Co. v. Cook, 18 Wyo. 43. It was defendant's duty to stop if necessary to avoid a collision. 2 Blashfield's Cyclopedia Automobile Law, 1720 et seq., 179 N.W. 647; Section 5897 C. S. is not mandatory. McClintock v. Ayres, 36 Wyo. 132. It should not be invoked if there be any evidence tending to support the verdict. 15 R. C. L. 607. One cannot invoke the sudden peril rule, unless it be shown that he was using ordinary care. Garvey v. Ladd, 266 S.W. 727, 63 A. L. R. 277; Hines v. Sweeney, 28 Wyo. 57. Failure of a motorist to stop in the face of peril from an approaching car, is a lack of ordinary care which the doctrine of last clear chance requires him to exercise. Hamblin v. Schultis, (Cal.) 220 P. 320; Raymen v. Calvin, (Mo.) 229 S.W. 747; Whitman v. Collin, (Mich.) 162 N.W. 950; Thompson v. Collins, (Wash.) 247 P. 458; Lawson v. Gleeson, 272 Ky. 56; Bosley v. Wells, (Mo.) 260 S.W. 125; Spaunhorst v. Co., (Mo.) 238 S.W. 821; McFern v. Gardner, (Mo.) 97 S.W. 972; Babbitt, The Law applied to Motor Vehicles, (3rd Ed.) 927; Rosenau v. Peterson, (Minn.) 179 N.W. 647. There was sufficient evidence to send the case to the jury. Stevens v. Westport Co., 25 S.W.2d 491. Where there is a reasonable inference of negligence, the jury's verdict upon the possible cause of the accident, is conclusive unless reasonable minds could differ upon the question. Lavenstein v. Maile, (Va.) 132 S.E. 844; Rwy. Co. v. Cauthen, (Okla.) 241 P. 188; Wharton's Law of Negligence (2d Ed.) 73; Cole v. Soc., 124 F. 113; Big Goose Co. v. Morrow, 8 Wyo. 537; Hill v. Windsor, 118 Mass. 251. Proximate cause was not properly defined by the instructions. Hester v. Co., 285 P. 781; Shearman & Redfield on Negligence, 5th Ed., Sec. 28; Clifton v. Smith, (Minn. ) 206 N.W. 923; Fannon v. Morton, 228 Ill.App. 415. Proximate cause is the producing cause. Lemos v. Madden, 28 Wyo. 1 at p. 16; Westerdale v. Northern P. Co., 273 P. 1081; Hellan v. Co., 163 P. 9. Conflicting facts shown by the evidence were for the jury. Hadley v. Arms & Scott, (Wash.) 241 P. 26; Brown v. Thayer, (Mass.) 99 N.E. 237; Mahegan v. Faber, (Wis.) 149 N.W. 397. It was defendant's duty to stop. Co. v. Bow, (Ind.) 189 P. 48; 1 Blashfield Cyc. Auto Law, 423; Carruthers v. Campbell, (Ia.) 192 N.W. 138; Norris v. Hadfield, (Wash.) 213 P. 934. There was sufficient evidence of proximate cause to support the verdict. Elliott v. Co., (Wash.) 251 P. 177; Wells v. Shepard, (Ark.) 205 S.W. 806. The emergency rule is well defined in Bouthall v. Smith, (La.) 92 So. 402; Scragg v. Saller, (Cal.) 140 P. 706; Loney v. Co., 36 Wyo. 339. The verdict of the jury should not have been disturbed. Whitelaw v. McGilliard, (Calif.) 176 P. 679; Newman v. Overholtzer, (Calif.) 190 P. 175. A court cannot set aside a verdict and render judgment, unless the facts be such that fair-minded men ought not to differ about them. Thompson's Com. Neg. (2d) Sec. 161; Shearman and Redfield on Neg. (5th Ed.) Sec. 56; Loney v. Auto Co., supra. The question of proximate cause is for the jury. King v. Green, 94 P. 777; Rwy. Co. v. Larson, 97 N.W. 824; C. B. & Q. R. R. Co. v. Morris, 16 Wyo. 308; Calkins v. Co., 25 Wyo. 409, and 'what is diligence' and 'what a reasonably prudent man would have done are questions for the jury.' O'Dowd v. Newhan, (Ga.) 80 S.E. 36; Hines v. Sweeney, 28 Wyo. 57; Collins v. Anderson, 37 Wyo. 275; Hester v. Co., (Wyo.) 285 P. 781.

For the respondent there was a brief by Nichols & Stirrett and R. R. Rose, of Casper, Wyoming, and oral argument by Mr. Rose.

The alleged negligence of Mahoney did not contribute to the proximate cause of the collision. 2 Blashfield's Cyc. Auto. Law 1183. Even if he were going at an unlawful rate of speed. Stack v. Baking Co., (Mo.) 223 S.W. 89; Sheffield v. Co., (N. D.) 190 N.W. 315; Provinsal v. Peterson, (Minn.) 169 N.W. 481; Stobie v. Sullivan, (Me.) 105 A. 714; Ellis v. Olson, (Wash.) 246 P. 944; Cross v. Rosencranz, (Kan.) 195 P. 857. The rule is well stated in Lavenstein v. Maile, (Va.) 132 S.E. 844; Burlie v. Stephens, (Wash.) 193 P. 684; John v. Pierce, (Wis.) 178 N.W. 296; Cooper v. Steptoe, 5 La. App. 462. A case similar on the facts is that of Whalen v. Dunbar, 115 A. 718; and also Robinson v. Clemons, (Calif.) 190 P. 203; Simonson v. Christopher Co., (Calif.) 200 P. 615. Proximate cause is well defined in the case of Lemos v. Madden, 28 Wyo. 1; and also Christensen v. McCann, 41 Wyo. 101; Henderson v. Land, (Wyo.) 295 P. 271. We think the decision in Hester v. Coliseum Motor Co., (Wyo.) 285 P. 781 is controlling. The rule as to the province of the court and jury is laid down in Calkins v. Wyo. Coal Co., 25 Wyo. 409, and the right to take a case from a jury is passed upon in Hines v. Sweeney, 28 Wyo. 57; and Collins v. Anderson, 37 Wyo. 275. Defendant was not negligent in turning to the left to avoid collision with the Eagan car. 1 Blashfield's Cyc. Auto Law 416; Elgin Dairy Co. v. Shepherd, (Ind.) 108 N.E. 234; Goble v. Vaught, (Ore.) 269 P. 493, 42 C. J. 901, Sec. 607; Shaw v. Wilcox, (Mo.) 224 S.W. 58; Simonsen v. Christopher, (Calif.) 200 P. 615; Padgett v. Brangan, (Ky.) 15 S.W.2d 279; John v. Pierce, (Wis.) 178 N.W. 297; Cook v. Standard Oil Co., (Ala.) 73 So. 763; Baker v. Zimmerman, (Ia.) 161 N.W. 479; Hatch v. Daniels, (Vt.) 117 A. 105; Hicks v. Morgan, (Tex.) 259 S.W. 263; Skene v. Graham, (Me.) 95 A. 950; Tooker v. Perkins, 150 P. 1138; Potter v. Glassell, 83 So. 898. The trial court had statutory authority for rendering judgment notwithstanding the verdict. 5897 C. S. 1920. Instruction No. 11 was not prejudicial to plaintiff for the reason that the jury returned a verdict for plaintiff.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

Plaintiff was injured as a result of a collision on June 8, 1929, between a Buick automobile driven by the defendant Phillip S. Mahoney and a Chevrolet automobile driven by one Dan F. Eagan. Both Mahoney and Eagan were sued. The latter entered a special appearance on account of want of proper service of summons. A change of venue was taken from Natrona to Sheridan County, and the cause was tried against the defendant Mahoney alone, and he will hereafter be referred to as the defendant. The jury empaneled in the cause returned a verdict in favor of plaintiff in the sum of $ 7700. But the court entered a judgment notwithstanding the verdict, and from this judgment the plaintiff has appealed.

The collision happened about 11:30 at night. Plaintiff was riding as a guest with Dan Eagan and one Portman, coming from a dance and traveling toward Casper in a generally westerly direction. Defendant Mahoney, with two guests, was traveling from Casper, in a generally easterly direction, going to a dance. The accident happened about a mile and one-half easterly of Casper, close to a bridge, where there was a gulch, 18 feet deep. The road at that place was 24 feet wide with pavement thereon 19 1/2 feet in width. At each side of the bridge was a wire fence, called a "wire mesh" in the testimony, extending 40 feet in length on the easterly and 40 feet in length on the westerly side of the bridge. The plaintiff testified to her injuries and what happened up to the time that she and Eagan and Portman left the dance hall, but claimed that she did not remember anything that took place from that time on until after the collision. The defendant testified that he was traveling at not to exceed 25 to 35 miles per hour, and there was no direct testimony contradicting this statement as to the speed at the time and immediately prior to the accident. Two witnesses, however, testified that about a mile west of the accident, the defendant passed them, going at the rate of 50 miles per hour or more, and that he kept in front of them, while they themselves were going from 45 to 50 miles an hour. The plaintiff testified that Eagan had been driving carefully, having a new car; but as she did not remember anything that took place after she left the dance hall, her testimony as to the speed of Eagan's car at the time and immediately preceding the accident would be of no value. The only testimony on that point is that of defendant. He stated that he saw Eagan's car when about 300 feet distant, when he himself was about 150 feet west of the bridge and when Eagan was about 150 feet east of the bridge. The cars accordingly were traveling at about the same rate of speed. The only witness as to how the accident happened was the defendant, who was called by the plaintiff for cross-examination under the statute. He stated that he drove his car, his guests sitting on his right; that the lights of his car were on; that he noticed a car, subsequently found to be that of Eagan, coming toward him, about 300 feet distant, and traveling on the south, the wrong, side of the road, while he himself was also on the south side, his right side of the road; that he supposed that Eagan would turn to his own side in proper time; that he, Eagan had plenty of time and space to do so; that he himself ...