Merback v. Blanchard, 2151

• Decision Date: 12 September 1940
• Docket Number: 2151
• Citation: 56 Wyo. 152,105 P.2d 272
• Parties: MERBACK v. BLANCHARD ET AL
• Court: Wyoming Supreme Court

105 P.2d 272

56 Wyo. 152

MERBACK v. BLANCHARD ET AL

No. 2151

Supreme Court of Wyoming

September 12, 1940

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by Blanche Merback, as administratrix of the estate of John F. Merback, Jr., deceased, against Palmer W. Blanchard and others, copartners, doing business under the firm name and style of Blanchard Brothers Construction Company, a copartnership, for death of plaintiff's intestate and for injury to property which were allegedly caused by negligence of driver of a truck belonging to defendants. From a judgment for defendants, based on a directed verdict, the plaintiff appeals.

Judgment reversed and case remanded for a new trial.

For the appellant, there was a brief by Walter Q. Phelan and Bradford Ross, both of Cheyenne, and oral arguments by Mr. Phelan and Mr. Ross.

The court erred in receiving certain testimony offered by defendant and in directing a verdict for defendant. The violation of traffic regulations is negligence per se. Nichols v. Watson, 178 A. 427; Contracting Co v. Berry (Ala.) 134 So. 868; Page v. Neiland, 178 N.E. 170; Marinkovich v. Tierney, 17 P.2d 93; Cheskus v. Christiano, 182 A. 131; Schwind v Gibson, 260 N.W. 853; Blashfield Cyc. of Automobile Law, Vol. II, pp. 1157-1158. An automobile owner is liable for an accident due to defects in his car or insufficient servicing thereof. Martin v. Tracy, 246 N.W. 6; Peterson v. Seattle Auto Co., 271 P. 1001; McCormick v. Mettitt, 250 N.Y.S. 443. It is for the jury to determine whether an automobile disabled at night could have been removed from the travelled portion of the highway in time to prevent an accident. Lockie v. Pence, 42 P.2d 340; Anderson v. Thompson, 22 P.2d 438; Breen v. Soars, 64 P. 146; Gerrard Company v. Couch, 29 P.2d 151. It is negligence to permit a truck to stand upon the highway in the nighttime without sufficient lights thereon. Hall v. Associated Oil Co., 65 P.2d 954; Lincoln v. Stone, 42 S.W.2d 128; Moore v. Truck Company, 244 N.W. 228; Jessen v. Angelus Furniture & Mfg. Company, 42 P.2d 1063. When a car approaches the rear of a vehicle parked in the highway at night and collides therewith, the question of negligence on the part of the approaching driver is for the jury. Gonzales v. Nichols, 294 P. 758; Seben v. Malanka, 182 A. 890; Hatch v. Daniels, 117 A. 105; Boileau v. Williams, 185 A. 429; Bielke v. Knack, 242 N.W. 176. The driver of a car on a highway at night has the right to presume that there will not be a car, unlighted, parked on the travelled portion of the highway. Lunquist v. Thierman, 248 N.W. 504; Mostive v. Unkefer, 157 N.E. 714; Carlson v. Decker, 247 N.W. 296. When a vehicle is parked on a highway without lights required by statute, and another vehicle collides with it from the rear, the question whether the absence of lights was the proximate cause of the accident is for the jury. Circumstantial evidence upon which a logical inference of the causal relation could be drawn is sufficient to take the question to the jury. Simpson v. Miller, 34 P.2d 528; Schwind v. Gibson (Iowa) 260 N.W. 853; McGrory v. Thurnau, 84 S.W.2d 147; Ashley v. Safeway Stores (Mont.) 47 P.2d 53; Darby v. Jarrett (Ohio) 159 N.E. 858; Hewitt v. Green, 28 S.W.2d 892; Ross v. Gearin (Okla.) 291 P. 534; Walker v. Kroger Grocery & Baking Co. (Wis.) 252 N.W. 721; Anderson v. Thompson, 22 P.2d 438. The personal representative of a person whose death results from wrongful act or neglect may recover damages for the pecuniary loss and the injury by way of loss of advice, comfort and society sustained by the surviving widow and children. Section 89-403, R. S. 1931; Sec. 89-404, R. S. 1931; Coliseum Motor Company v. Hester, 43 Wyo. 298. Evidence in favor of plaintiff, with inferences as might reasonably be drawn therefrom, must be accepted as true as against motion for directed verdict. Collins v. Anderson, 37 Wyo. 275. Unless only one view could be reasonably taken and that one of negligence on the part of the plaintiff, the case should be submitted to the jury. 64 C. J. 342. Statutes in effect and pertinent to this controversy are: Sections 72-206-7, R. S. 1931, Chapter 71, Laws 1933 and Chapter 38, Laws 1935. Defendants were negligent per se. Nichols v. Watson (Conn.) 178 A. 427; Newell Contracting Company v. Berry (Ala.) 134 So. 868. The violation of a statute constitutes negligence. Watts v. Montgomery Traction Company (Ala.) 57 So. 471. Where there is a conflict of evidence on material questions of fact, the questions are for the jury. Northwest Utilities Company v. Brouilette, 51 Wyo. 132, 65 P.2d 223. The question of proximate cause was one of fact for the jury to decide and the court erred in directing a verdict for defendant. Defendants' motion for a directed verdict, on the ground that there is not sufficient evidence of damages upon which the jury could base a verdict in favor of the plaintiff, was wholly without merit. The basis for the cause of action is found in Section 89-403, R. S. 1931. The measure of damages in a case of this character was carefully reviewed by this court in Coliseum Motor Company v. Hester, 43 Wyo. 298. The judgment below should be reversed and the cause remanded for a retrial.

For the respondents, there was a brief and an oral argument by Mr. M. A. Kline of Cheyenne.

A trial court should direct a verdict for defendant when the whole evidence, with all reasonable inferences therefrom, is sufficient to support a verdict for plaintiff. Commissioners v. Clark, 94 U.S. 278; Pleasants v. Fant, 22 L.Ed. 780; Meyer v. Houck (Iowa) 52 N.W. 235; Loudon v. Scott (Mont.) 194 P. 488; Armstrong v. Aragon (N. M.) 79 P. 291; In re Baldwin's Estate (Cal.) 123 P. 267; Miller v. Farmers Bank and Trust Co. (Colo.) 260 P. 112; Pickens v. Pittman (Okla.) 269 P. 347; Weed v. Clark (Me.) 109 A. 8; McCormack v. Standard Oil Co. (N. J.) 37 A. 617. While we have not found any decisions of this Court where the foregoing rule has been announced in its entirety, the following cases are in practicable accord therewith: Boswell v. First National Bank, 16 Wyo. 161, 92 P. 624; Calkins v. Coal Mining Co., 25 Wyo. 409; Wilde v. Amoretti Lodge Co., 47 Wyo. 505; In re Lane's Estate, 50 Wyo. 119; Montgomery Ward & Co. v. Arbogast, 53 Wyo. 275; Galicich v. Oregon Short Line R. R. Co. (Wyo.) 87 P.2d 27. It is a settled rule that if the court believes that a verdict is not sustained by sufficient evidence and has been challenged by a motion for a new trial, such verdict should be set aside. Kester v. Wagner, 22 Wyo. 512, 145 P. 748; Yarnell v. Kilgore, 82 P. 990. The trial court did not err when it directed a verdict for the defendants in the case at bar. There was no substantial evidence tending to prove acts of negligence on the part of defendants. The case is governed by the rule stated in 41 C. J. 1131. Even if it be conceded that the testimony of Wilbur Robertson was true, it would be insufficient in law to support any verdict for the plaintiff based upon alleged acts of negligence. In re Lane's Estate, supra. Berkovitz v. Gravel Co. (Cal.) 215 P. 675; Price v. Bailey, 265 Ill.App. 358; McDermott v. Transportation Co., 263 Ill.App. 325; Yates v. Brazelton (Cal.) 291 P. 695; 45 C. J. 635. The word "park" means something more than a mere momentary stoppage on the road for a necessary purpose. Dare v. Boss (Ore.) 224 P. 646; Section 72-207, R. S. 1931; Sec. 72-207, R. S. 1931; Wells v. McKenzie, 50 Wyo. 412. The facts in the case of Colvin v. Auto Company (Wash.) 232 P. 365 are very similar to those in the case at bar and the Washington statute is similar to Section 72-207, R. S. 1931. See also Anderson on An Automobile Accident Suit, p. 1058. The evidence introduced proved that John Merback, Jr., plaintiff's intestate, was guilty of negligence, that was the direct cause of the accident. Sec. 72-203, R. S. 1931; 42 C. J. 909; Government Lumber Co. v. Olinger (Ala.) 94 So. 177; Mueller v. Bobbitt (Tex.) 41 S.W.2d 466; Ritter v. Johnson (Wash.) 300 P. 578; Schoffner v. Schmerin (Pa.) 175 A. 516; Gornstein v. Priver (Cal.) 221 P. 396; Parsons v. Hamrick (Wash.) 203 P. 371; Stone v. Mullen (Mass.) 153 N.E. 565. It is negligence to drive an automobile on a highway at night, at such speed that it cannot be stopped within the distance that objects can be seen ahead of it. Haines v. Carroll, 267 P. 986; Roth v. Blomquist (Nebr.) 220 N.W. 572; Knapp v. Somerville (Wis.) 219 N.W. 369; Lang v. Hanlan (Pa.) 153 A. 143; Phillips v. Thornton, 170 N.Y.S. 533; Power & Light Co. v. Saia (La.) 173 So. 537; Shannahan v. Produce Co. (Ia.) 263 N.W. 39; Skaug v. Knappins (Mich.) 216 N.W. 403; Fisher v. O'Brien (Kan.) 162 P. 317; Refining Co. v. Deshan (Okla.) 300 P. 312; Bracy v. Lund (Wash.) 84 P.2d 670. The presumption is that the action of the trial court was right in directing a verdict for defendants. O'Malley v. Eagan, 43 Wyo. 233. Inferences cannot be based upon other inferences. Brown v. Maryland Casualty Co., 55 F.2d 159.

KIMBALL, Justice. RINER, Ch. J., concurs. BLUME, J., concurs in the opinion except that he believes that the facts show that the deceased was guilty of contributory negligence as a matter of law and to that extent dissents.

OPINION

KIMBALL, Justice.

Plaintiff as administratrix of the estate of her deceased husband, John F. Merback, sued for damages for death of her husband and for injury to property which she alleged were caused by the negligence of the driver of a truck belonging to defendants. There was a jury trial, and after all the evidence on both sides had been heard, a verdict for defendants was directed. On plaintiff's appeal from the judgment on the verdict, the questions for decision are whether the directed verdict was justified either by lack of evidence to show that the...