McClure v. Latta, 2893

• Decision Date: 03 February 1960
• Docket Number: No. 2893,2893
• Citation: 348 P.2d 1057
• Parties: Ernest O. McCLURE, Appellant (Defendant below), and George Acuff Drilling Company (Defendant below), v. Bernetta LATTA and Robert Latta, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 1057

348 P.2d 1057

Ernest O. McCLURE, Appellant (Defendant below), and George Acuff Drilling Company (Defendant below), v. Bernetta LATTA and Robert Latta, Appellees (Plaintiffs below).

No. 2893.

Supreme Court of Wyoming.

Feb. 3, 1960.

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

Ernest Wilkerson and Robert J. Murphy, Casper, for appellees.

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

Mr. Justice PARKER delivered the opinion of the court.

This cause arises from a one-car accident on December 31, 1953, wherein an automobile belonging to the George Acuff Drilling Company, and driven by Ernest O. McClure, went off the Campbell curve on the Lander-Hudson highway. Mrs. Bernetta Latta, a guest of the driver McClure, was seriously injured in the crash; she with her husband brought suit against both McClure and the George Acuff Drilling Company. At the close of plaintiffs' case, the court on motion dismissed as to the company, and the case proceeded against McClure. The jury rendered a verdict in favor of Mrs. Latta in the sum of $50,000 and in favor of the husband in the sum of $9,194.32, and judgment was entered thereon. This appeal is prosecuted from such verdicts and judgment.

The principal issue is the application of § 31-233, W.S.1957, ¹ commonly known as the guest statute, to the facts in the case, it being alleged in the pleadings and admitted that Mrs. Latta was a guest of McClure and defendant urging that he was not guilty of gross negligence upon which liability could be based under the guest statute. ²

The record discloses evidence of the following occurrences: By mutual arrangement, Mrs. Latta met McClure in Casper on December 31, 1953, and accompanied him as a guest on a trip to Lander that afternoon. En route they each had a couple of drinks of whiskey from a bottle. They registered at a hotel in Lander, going to their separate rooms, and thereafter met in a bar where they had two or three drinks. About eight o'clock they left for Hudson where they expected to have dinner. Mrs. Latta said that at the edge of Lander McClure started out with quite a burst of speed. McClure testified that there was no ice or snow on the road, that the night was clear but that it was dark, and that he drove about 50 miles per hour all the way. Some two miles out of town, immediately prior to the Beebe curve, they passed a 1947 Dodge driven by Paul Ogden who was accompanied by his wife and Mr. and Mrs. Walter Richie. Ogden said that he was traveling about 30 miles per hour when McClure came up behind him; that as McClure passed he (Ogden) slowed his speed to avoid a possible accident on the curve; that between the Beebe curve and the Reiding ranch turnoff, some 675 feet down the road, he increased his speed 'to about 40 miles an hour. Between 30 and 40.' He estimated McClure's speed in passing at 50 miles per hour; said, 'The car passed me prior to the Beebe curve at a place where I should not have been passed, and at a speed that should not have been obtained to make that curve.' Just after the McClure car had passed, Ogden exclaimed, 'He made that one, but he won't make the next one.' ³ Ogden said McClure's car swayed after he got around the curve, that McClure decreased his speed and thereafter increased it. Over the defendant's objection as to lack of qualification, the passengers, Mr. and Mrs. Richie and Mrs. Ogden, testified variously as to the speed of the Ogden car as being 30 to 40 miles per hour at the point of the passing and the speed of the McClure car as 'very fast' and '65 to 70.' Richie said that McClure's car swerved in 'heading back' after the Beebe curve. Mrs. Latta, who was not clear as to the exact point of passing on the Beebe curve, said that she remembered the tires squealing as they passed the car and went around the curve, and she said to McClure, 'That's a little fast, don't you think?' McClure says he does not recall her saying anything. Some 1,885 feet from the Beebe curve toward Hudson is the Campbell curve where the road slopes downhill. Some 225 feet preceding this in the borrow pit on the right-hand side of the road is a highway marker showing a sharp curve to the left and the number '30' below the curve sign. McClure says that for some unknown reason he did not see the curve sign; that he continued to drive about 50 miles per hour toward the Campbell curve. He says that he knew, from the twenty-five or thirty times he had been over the road, that the Campbell curve was there but didn't know just where and thought that it turned right instead of left; that at the Campbell curve he was driving 50 miles per hour; that the lights from the Ogden car blinded him and he went straight off the curve. He said he didn't know he was in trouble until the right front side of the car started dropping, going off the curve first. He testified:

'And then I turned the wheel back to try to get back on the road, and that throwed the back end in the ditch, two wheels on top of the road, on top of the borrow pit. I went ahead and opened it up to try to bring it out of the skid, because I was skidding sideways on around the curve in the borrow pit, with two wheels on top, the front wheels cut towards the direction I was skidding in. I thought I was going to bring it out of it. It looked like I was going to make it all right. And I hit the road approach to this little house * * * . * * * when the back wheels hit that, the next thing I knew I seen the pavement directly underneath me. I hit on the left front fender out in approximately the middle of the road, and then rolled off on the corner and started rolling sideways, wound up down in the alfalfa field across the borrow pit.'

According to the investigating officer, the car turned over one and a half times and stopped at a point approximately 140 feet from where it left the highway.

Mrs. Latta's account of what happened immediately preceding the crash was as follows: 'Everything was so fast. There was a sensation of going around the [Beebe] curve, the screeching, the righting of the car, and the lights, and that's it.' On direct examination she said of the light that after the Beebe curve her next recollection was a light; asked what it was, she said, 'The light was very soon after the screeching of the tires, and I noticed what I thought was a dirty windshield, which I am sure it was.' On cross-examination counsel referred many times to a 'blinding' light, and Mrs. Latta assented to the description, or at least did not correct him, and at one time said that the brilliance stuck in her memory.

Ogden testified that when he reached the Reiding ranch turnoff (675 feet from the Beebe curve) he turned on his bright lights and that when he was about halfway down the lane from the Beebe curve to the Campbell curve he saw McClure's brake lights go on and the car 'start into its roll,' and said, 'There he goes.' He estimated McClure's speed as twice that of his car. Mrs. Latta was seriously injured, help was summoned, and she was taken to the hospital. The highway patrolman who investigated the accident testified that the cause of the accident was 'Speed too fast for conditions.'

Counsel make no point of the amount of the damages flowing from the injuries, but confine argument to the insufficiency of the evidence to support the verdicts and judgment, emphasizing the lack of showing that there was excessive speed and urging the insufficiency of speed alone as constituting gross negligence; the fact that any failure to observe the warning sign was at most simple negligence not proximately related to the accident; and McClure's being blinded as the actual cause of the crash.

The burden of defendant's contention as to speed is that there was no positive and compelling testimony on the subject. He admits that the investigating patrolman stated the cause of the accident to be 'speed too fast for conditions,' but says that this was vague, indefinite, uncertain, and testimony solely from memory, overlooking the fact that apparently the trial court considered the officer to be an expert witness and entitled to express an opinion. As we said in Macy v. Billings, 74 Wyo. 404, 289 P.2d 422, 424, "the question of whether an expert witness is qualified rests largely in the judicial discretion of the trial court,' * * * and we do not feel warranted to reverse the cause herein simply because the court considered Peterson [the officer] an expert.' In any event, there was no objection to the testimony, and since a rule of evidence not invoked is waived, 1 Wigmore on Evidence, 3 ed., p. 321, the jury was entitled to consider the patrolman's opinion in arriving at its verdicts.

It is urged that the statements of Mr. and Mrs. Richie and Mrs. Ogden were conflicting in some respects, that there was no foundation laid for testimony from them as to speed, and that their evidence was inadmissible as being conclusions. We agree that there might be a difference in viewpoint as to what weight should be accorded the testimony of these obviously nonexpert witnesses since they had not made speedometer readings or testified in detail as to the basis upon which they could determine exact speed. However, their testimony was competent to be admitted for such weight as the jury might determine from a consideration of it in conjunction with all of the facts brought out at the trial. 'Expert testimony may be used to aid in determining speed, but testimony of nonexpert witnesses is equally competent.' 9C Blashfield, Cyclopedia of Automobile Law and Practice, perm. ed. 1954, p. 382. This is in accord with 2 Jones on Evidence, 5 ed., p. 763:

'* * * The rate of speed of automobiles on public streets and highways is a matter of daily observation and some knowledge by substantially all persons; it is not a matter exclusively of expert knowledge or skill. Where the rate of speed of such a vehicle is material in an action, any person of ordinary...