McPike v. Scheuerman, 3385

• Decision Date: 18 January 1965
• Docket Number: No. 3385,3385
• Citation: 398 P.2d 71
• Parties: W. F. McPIKE and Myron McPike, as Administrators of the Estate of Vickie Lee McPike, Deceased, Appellants (Plaintiffs below), v. Steven Thomas SCHEUERMAN, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 71

398 P.2d 71

W. F. McPIKE and Myron McPike, as Administrators of the Estate of Vickie Lee McPike, Deceased, Appellants (Plaintiffs below), v. Steven Thomas SCHEUERMAN, Appellee (Defendant below).

No. 3385.

Supreme Court of Wyoming.

Jan. 18, 1965.

Scott & Joffe and Harold Joffe, Worland, for appellants.

Henderson, Godfrey, Kline & Uchner and Paul B. Godfrey, Cheyenne, for appellee.

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

Mr. Chief Justice PARKER delivered the opinion of the court.

Mr. and Mrs. McPike, as administrators of the estate of their deceased 14-year-old daughter, brought an action alleging that she came to her death by reason of her being struck by an automobile which defendant drove in a careless and negligent manner and seeking $1,682.32 in special and $25,000 in general damages. The case was tried to a jury which rendered a verdict for plaintiffs and against the defendant in the amount of $3,500, whereupon plaintiffs filed a motion for new trial on the grounds that the verdict of the jury had awarded inadequate damages, appearing to have been given under the influence of passion and prejudice, and the verdict was not sustained by sufficient evidence and was contrary to law. No order was entered within the requisite time, and under the provisions of Rule 59(f), W.R.C.P., the motion was deemed denied.

Plaintiffs have appealed, contending that the verdict is not sustained by sufficient evidence, is contrary to law and that the damages awarded are inadequate. In general, the facts are not disputed. The testimony showed that on December 17, 1962, about 4 p. m., deceased, with a friend, Patty Cooper, was crossing Big Horn Avenue at Twelfth Street in Worland. They were proceeding northerly in a marked crosswalk for pedestrians; a portable school sign in the middle of the street stated, 'School Drive Slowly.' The avenue was seventy feet wide between curb lines, with two driving lanes going each way. The prescribed speed limit was twenty miles per hour. Defendant, fifteen years old, was driving west on the avenue in his father's automobile at a speed which was variously estimated from twenty to thirty miles per hour. With him in the car were two boy friends, fifteen and sixteen years of age. According to defendant, he first observed the girls when he was 120 feet away and traveling about twenty or twenty-five miles per hour. They were in the crosswalk, at the position of the sign, halfway across the street. Defendant was then in the left or inside lane. He said he thought that the girls would continue to walk and he would be able to go by, but the girls separated, the friend going on across the street, Vickie McPike turning around and looking as if she was going to go in the other direction so he attempted to go between them but when he got close to them she started to go toward the girl friend so he swerved to his left and tried to miss her but did not, striking her with the front of the car. He said he did not attempt to slow up or put on the brakes when he first saw them because there was nothing unusual about it, that as he proceeded down the street in the middle lane--straddling it a little bit--Patty Cooper took off to his right and Vickie McPike turned to his left, and it seemed she was going the other way, so he turned sharply to his left and, while he was not positive, thought he stepped on the brake at that time but it did not catch at first. The speed of the car at and immediately before the impact was not established with definiteness, neither defendant nor any of the other witnesses having purported to have looked at the speedometer. He said that he was going twenty to twenty-five but Ernest Cook, a spectator, who purported to have tested cars on a track for General Motors, estimated that defendant was going about twenty-five. Kent Loveland, one of defendant's passengers, believed the speed to be about thirty but later on cross-examination in response to the question, 'It could have been twenty or it could have been thirty,' answered, 'Yes.' Loveland said that he felt the car accelerate when he first saw the girls 120 feet from them. Greg Ward, another passenger, said he would judge the speed was about thirty.

It is perhaps unnecessary to discuss appellee's contention that there was uncontroverted evidence of negligence on the part of deceased which evoked a sympathy verdict from the jury. At most, such a statement is only a conclusion. Furthermore, according to any reasonable analysis, and even based on the evidence of defendant himself, he was traveling at a speed and in a manner that was improper and negligent under the circumstances, making no attempt to stop for pedestrians in a marked crosswalk when there was a sign clearly showing. Moreover, he said that he saw the girls and recognized Vickie McPike and admitted he was familiar with the area and the crosswalk. The jury under the instructions was entitled to say whether or not there was contributory negligence on the part of deceased and obviously determined there was none. As stated in 2 A.L.I Restatement, Torts, § 470 (1934), 'The fact that the plaintiff is acting in an emergency not created by his own antecedent negligence is a factor to be taken into account in determining whether his conduct is free from contributory negligence.' Amodei v. Saunders, 374 Pa. 180, 97 A.2d 362, 363-364, is in point:

'The jury was also warranted in concluding that the decedent was free of contributory negligence. The fact that Mrs. Scheeler testified that when Amodei [decedent] reached the middle of the street he 'moved faster' does not say that he contributed to the happening of the tragedy. The accelerated movement mentioned by the witness is not to be confused with a 'darting out' case where the traffic victim is depicted as dashing out from a haven of safety to a place of obvious danger. Amodei had already traversed one-half of the intersection when he 'moved faster.' This movement could well have been his attempt to avoid the onrushing vehicle about to cruth him beneath its wheels. The law does not require that in a moment of extreme peril and overwhelming...