McClanahan v. Woodward Const. Co.

• Decision Date: 15 October 1957
• Docket Number: No. 2764,2764
• Citation: 77 Wyo. 362,316 P.2d 337
• Parties: Charles B. McCLANAHAN, Plaintiff and Respondent, v. WOODWARD CONSTRUCTION COMPANY, a Wyoming Corporation, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 337

316 P.2d 337

77 Wyo. 362

Charles B. McCLANAHAN, Plaintiff and Respondent, v. WOODWARD CONSTRUCTION COMPANY, a Wyoming Corporation, Defendant and Appellant.

No. 2764.

Supreme Court of Wyoming.

Oct. 15, 1957.

Murane & Bostwick, Edward E. Murane, Casper, for appellant.

Albert E. Nelson, Kenneth G. Hamm, Rock Springs, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of this court.

The defendant, Woodward Construction Company, appeals from a judgment entered in accordance with a jury's verdict, awarding plaintiff, Charles B. McClanahan, $10,000 damages for injuries and loss sustained as a result of an accident alleged to have been caused by negligent operation of defendant's oil distributor truck when loaded to an approximate weight of 10 tons and engaged in oiling city streets. The scene of the accident was at a place where the street being oiled, ended by its intersection with a cross street, thus making the two streets somewhat resemble the letter 'T'. The street was being oiled for a distance of two blocks and was 40 feet wide. This required the oiling truck to make four trips or runs, oiling a strip about 10 feet in width each time. The cross street was 51.9 feet in width. In order to apply the proper amount of oil, it was necessary for the oil distributor truck to proceed in a straight line and to maintain a constant speed of 17 to 18 miles per hour all the time the oil was being applied and until its rear end reached the closest line of the cross street, at which point an attendant would shut off the flow of oil and the truck driver would bring the equipment to a full stop. The truck would then be backed up a sufficient distance to permit the vehicle to turn into the cross street and continue back around two blocks in order to make another oiling run.

The oiling equipment was 24 feet 4 inches in length and because it was impracticable to turn the vehicle either to the right or to the left, in the short distance available after completing its oiling run at the required speed, the truck had to be completely stopped within a maximum distance of 27 feet 6 inches, after the oil flow was shut off and the brakes applied, or it would overrun the curb line on the opposite side of the cross street and onto the sidewalk. Two runs had been made in this manner, with the truck being brought to a full stop with the front end of the truck coming to within from 2 1/2 feet to 5 feet of the opposite curb. On the third trip an emergency stop was made about a block before the cross street was reached. The truck was backed up about 6 feet over the freshly oiled surface and then the third run was resumed. However, this time, when the truck passed into the intersection and the driver applied the foot brakes as the oil flow was cut off, he heard a loud noise and the foot brake he was using went ineffectively to the floor board. The driver did not sound the horn, give any other warning, or attempt to stop the truck by using the emergency or hand brake, but he testified that the emergency brake would not have stopped the truck had it been applied and that he did not have time to use it. Instead, the driver turned the truck to the left running up upon the sidewalk along the opposite side of the cross street where plaintiff claimed it struck and injured him as he was running down the walk, trying to escape from being hit by it. It also appears the appellant's watchman at the intersection had permitted pedestrians to congregate on and about a portion of the cross street which was to the right of the truck at the intersection, so that they blocked passage to the right on the cross street and prevented the driver from turning in that direction.

In claiming damages from the defendant, the plaintiff charged the defendant with several specific negligent acts or omissions, namely: 1. Failing to keep the truck under control; 2. Operating the truck when its brakes were not in good working order; 3. Failing to keep a proper lookout; 4. Drivig the truck onto the pedestrian sidewalk and colliding with plaintiff; 5. Failing to give any warning that truck was out of control; 6. Failing to turn truck to right or left so as to avoid colliding with plaintiff; 7. Failing to maintain and keep the truck's brakes in proper mechanical condition; 8. Failing to inspect truck and determine if brakes were in good working condition.

The defendant denied these charges and affirmatively pleaded a latent defect in the braking mechanism was the proximate cause of the brake failure and the resulting collision with and injury to plaintiff.

The plaintiff made denial of the affirmative defense and further charged that the emergency brake was inadequate to control the vehicle and that it was negligently maintained.

In this appeal, appellant insists its negligence was not shown; first, as the truck went out of control due to mechanical failure for which appellant was not responsible; second, because there was no evidence of negligence on its part; and, third, because the jury's answers to interrogatories were inconsistent with the general verdict.

The appellant asserts the court erred in failing to grant its motion for a directed verdict made at the close of the case, arguing there was insufficient evidence of any negligence on its part to submit to the jury. This requires our consideration of all the evidence in the light of plaintiff's allegations of defendant's negligence. Furthermore, as the appellant has categorically attacked the sufficiency of evidence necessary to sustain each of plaintiff's charges, we shall briefly discuss each of the appellant's specific representations.

To start with, the appellant erroneously assumes there was unrefuted testimony showing a latent defect in the rivets of the service or foot brake assembly which caused the brake mechanism to fail and the vehicle to go out of control. This assumption is not borne out. The evidence only shows that some of the foot brake's rivets were shorn off. It is somewhat doubtful if there was any evidence of a defect of any kind in the rivets, although the jury found they were defective. The fact that the rivets were shorn off carries with it no implication they were defective. So far as the evidence goes, they may have been and possibly they were completely perfect. It might also be that the whole service brake mechanism was in perfect condition--a condition sufficiently good for their adequate functioning under normal operational conditions--yet with rivets of insufficient strength, size or number to meet the requirements of the excessive braking power made necessary by the manner in which the vehicle was being used. In addition, there is no evidence and no finding as to the nature of the supposed defect in the rivets. Upon its erroneous assumption, the appellant concludes the brake failure sufficiently explains and refutes the first charge of failing to keep the truck under control, and the same was thereby excused. As will later be shown, there were a number of matters affecting the duty to keep the truck under control other than the mere fact that the rivets were shorn off. Hence, although it was undisputed that the brake failure was caused by the shearing of the rivets this did not warrant removal from the jury the determination of the ultimate fact of the defendant's liability for failure to keep the truck under control.

The claim there was no evidence that the truck was being operated when its brakes were not in good operating condition disregards the plain fact that evidence showed the service brakes did fail to control the truck at the time of the accident, notwithstanding they had successfully stopped the truck on three previous occasions.

The appellant's contention the emergency rule defeated plaintiff's charge that a proper lookout was not kept does not take into account it was the jury's province to determine from all the facts and circumstances, whether the emergency was one created by defendant. See 60 C.J.S. Motor Vehicles § 257 c, pp. 628, 629, 630; 1 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, Perm.Ed., § 669, p. 547.

The charge of negligence in defendant's truck striking plaintiff is sought to be avoided for the same reasons noted with respect to the brake failure. This we have not accepted.

The charge of negligence in failing to give warning is said to fail because of the extreme shortness of time as shown by the evidence. Of course, this was purely a matter for the jury's determination.

The charge of negligence in failing to avoid colliding with the plaintiff is attempted to be avoided because of the brake failure. To this we have given answer.

The charge of failure to maintain and keep the brakes in proper mechanical condition is claimed to have been refuted by undisputed testimony, and the charge of failure to inspect the truck and determine if brakes were in good working condition, as well as the charge that the Company was negligent in not equipping the vehicle with brakes of sufficient power and efficiency to stop and control the truck, are said to be without support in evidence. But again what we have said with respect to the appellant's contention on the question of brake failure is also applicable to these claims, to say nothing about the emergency brake question about which more will be said later on.

Lastly, the plaintiff's charge that there was negligence in failure to use the emergency brake is brushed aside by the defendant on the theory that there was a lack of time to apply that brake and the appellant's admission that in any event the emergency brake was insufficient to stop the loaded truck. Here the question of sufficient time was one for the jury, and the appellant's admission of the inadequacy of the emergency brake completely destroys the merit of the contention that the motion was improperly denied.

The second error claimed is that the...