Merback v. Blanchard, 2151
| Decision Date | 21 January 1941 |
| Docket Number | 2151 |
| Citation | 109 P.2d 49,56 Wyo. 286 |
| Parties | MERBACK v. BLANCHARD ET AL |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.
On petition for rehearing. For prior opinion, see 105 P.2d 272.
Petition for rehearing denied.
In support of the petition there was a brief by M. A. Kline, of Cheyenne, Wyoming.
KIMBALL Justice. RINER, Ch. J., and BLUME, J., concur in denying a rehearing, but BLUME, J., adheres to his opinion on the merits, as heretofore expressed.
Defendants have filed a petition for rehearing accompanied by a supporting brief of fifty pages. Former opinion, 105 P.2d 272. The brief at the outset informs us that the writers of it were present at the trial and are firmly convinced not only that there was no substantial evidence to substantiate the charges of negligence set forth in plaintiff's petition, but also that the evidence establishes beyond a reasonable doubt that the plaintiff's intestate was guilty of contributory negligence; therefore, they believe that the members of the court must have been either consciously or unconsciously influenced in their decision by sympathy for plaintiff and her infant son or by other matters outside of the record, or that they may have misunderstood portions of the testimony and failed to give proper weight thereto. If we undertake to put this in the form of a syllogism, we find that counsel have left it incomplete by modestly refraining from stating a valid major premise to support the conclusion.
The petition for rehearing alleges generally that the court erred in holding that questions of negligence and contributory negligence should have been submitted to the jury. On the sufficiency of the evidence to go to the jury on the question of defendants' negligence, we think the case requires no further discussion.
In contending that the evidence established that the deceased was guilty of contributory negligence as a matter of law counsel assert that the court made statements of fact not supported by the evidence, and it is principally for the purpose of showing the grounds for such statements that we add the following to amplify the discussion in our former opinion.
We understand that counsel take no exception to our holding that a driver of an automobile who collides with an obstruction on the highway should not be held negligent as a matter of law if there is evidence from which the jury may find that there were what we called "disconcerting circumstances" affecting his action at the time of the collision. It is contended, however, that there was in this case no evidence of such circumstances, and it is in this connection that it is asserted that we misunderstood portions of the evidence.
The first of the circumstances mentioned in our former opinion was the color of the defendants' truck and of the road on which it stood. The road was oil-surfaced, and the truck had been used for some time in hauling road oil. Our former opinion contains the statement that the "semi-trailer and tank of defendants' truck were black and soiled with black road oil." Counsel say there was no evidence to show this. The abstract of the evidence shows that defendant Blanchard testified that "the front part of the truck was red, the semi or oil tank was black." Another witness, according to the abstract, testified that "the front part of the Blanchard truck was of dark color and the tank was soiled with oil." In plaintiff's brief and oral argument it was stated that the tank was covered with road oil. These statements in the abstract, brief and oral argument were not challenged by defendants' counsel until the petition for rehearing was filed. It is now contended that the statements in the abstract do not accurately reproduce the testimony of the witnesses on this point. In the circumstances we think the fact stated in our opinion was virtually admitted. We may now add that the photographs taken shortly after the collision indicate that the rear of the tank on the defendants' truck was substantially the same color as the road. The photographs indicate that the rear parts of the trailer below and supporting the tank were even darker in color than the tank itself, but this is probably explained by testimony that the black oil ran out of the tank onto the parts below through a pipe or valve opened by the collision.
Another circumstance mentioned in our former opinion was the glare of the lights of Russell's truck approaching from the other direction. The theory was that if Thomas was blinded by those lights, the deceased, who, according to the testimony of Thomas and Russell, was very close behind Thomas, may also have been blinded or confused by the same lights. We stated that witness Thomas gave testimony "that the jury may have understood as meaning that he was blinded by the lights from Russell's truck." Counsel say that "the witness' testimony will not support any such interpretation," and quote from the record two statements made by the witness in explaining why, at the time he stopped, he did not see the lights of the Merback truck. The first: "Turning the truck toward the edge of the road would blind your light coming and the lights the other way too." The second: Counsel say there is no other evidence in the record upon this point. There is, however, a third statement of the same witness which counsel have evidently forgotten: "I was turning from the center of the road and was blinded by the flare of the lights, and any other lights would do that too." Some of this testimony might have been given in clearer language, but no discussion is necessary to justify our statement that the jury may have understood that the witness meant that he was blinded by Russell's lights, the only lights that could have had that effect.
A third circumstance was the dimming of the rear warning lights on defendants' truck before the deceased ran into it. We assumed that the jury might have believed that those lights continued to burn dimly until they were extinguished by the collision. This was not shown by direct evidence, but defendants argue that it should be inferred from testimony that the front lights, on the same circuit, were burning dimly even after the collision. Thomas testified that the last dimming of his front lights occurred while he was traveling 100 or 150 feet just before the collision, and the inference most favorable to defendants is that the rear warning lights became correspondingly dim at the same time. We...
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