Mooneyham v. Kays

• Decision Date: 07 September 1965
• Docket Number: No. 3399,3399
• Citation: 405 P.2d 267
• Parties: Donald R. MOONEYHAM, Appellant (Defendant below), v. Robert N. KAYS, Doris Kays, and Robert N. Kays, Jr., a minor, Cheryl Kays, a minor, and Nancy Kays, a minor, by and through their father and next friend, Robert N. Kays, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 267

405 P.2d 267

Donald R. MOONEYHAM, Appellant (Defendant below), v. Robert N. KAYS, Doris Kays, and Robert N. Kays, Jr., a minor, Cheryl Kays, a minor, and Nancy Kays, a minor, by and through their father and next friend, Robert N. Kays, Appellees (Plaintiffs below).

No. 3399.

Supreme Court of Wyoming.

Sept. 7, 1965.

Guy, Phelan, White & Mulvaney and Peter J. Mulvaney, Cheyenne, for appellant.

Pence & Millett and Alfred M. Pence, Laramie, for appellees.

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

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

Plaintiffs filed complaint charging that the defendant as an employee of Delbert Norton, ¹ negligently parked a truck belonging to Mr. Norton on U. S. Highway 30 about three miles north of Bosler, Wyoming, on September 7, 1961, in such manner as to cause the vehicle driven by plaintiff Robert N. Kays to collide therewith, as a result of which the plaintiffs suffered damages. Defendant, admitting the collision, denied generally, but asserted that the negligence of plaintiff Robert N. Kays was the cause of and contributed to the collision and alleged further that plaintiffs were engaged in a joint venture at the time of the collision so that the negligence of Mr. Kays was attributable to and binding upon the other plaintiffs. Under the provisions of Rule 42, W.R.C.P., trial was had on the merits and judgment was entered for the defendant and against the plaintiff Robert N. Kays but for the other plaintiffs and against the defendant. Thereafter defendant filed motion for new trial, which was overruled, and the matter is now before this court on his appeal.

The facts, as would appear pertinent to the appeal, are as follows:

Mr. and Mrs. Kays owned a station wagon, jointly registered in their names, and in it they left San Mateo, California, at approximately 1 a. m., September 6. They progressed easterly, the driving alternating between Mr. and Mrs. Kays every three or four hours. When Mrs. Kays stopped at Rawlins, Wyoming, for gas, Mr. Kays, who had been sleeping, awakened and commenced driving. From Rawlins to the place of the accident, some ninety miles, Mr. Kays drove at a speed of fifty to fifty-five miles per hour. Mrs. Kays slept in the back with two of the children, the other child lay on the front seat beside her father. The night was dark and although it had been raining in Rawlins the highway was dry at the scene of the accident.

On September 6, 1961, 17-year-old Donald Mooneyham, was driving a tractor and trailer that carried a Roll-O-Plane. The tractor was a 1948 or 1949 Reo; the semitrailer was a single-axle, flatbed trailer. About two hundred miles from the place of the accident, Donald started having trouble with his vehicle. The engine kept throwing water and would overheat. Donald would stop about every twenty miles and refill the radiator but did not stop at a garage. At about 8:30 p. m. as Donald was coming up a slight grade, the truck engine stopped and he pulled over to the side of the highway. When the truck had come to a complete stop, both of the front wheels were almost off the road but the rear wheels were three feet on the oiled portion of the highway. He left the truck lights on while he set out three bomb-type, kerosene flares, one about five or ten feet in front of the truck, another just to the rear of the trailer and on the highway, and the third about forty or fifty feet behind the vehicle, out at the edge of the highway. Traffic seemed to have no difficulty in passing him. He would check the flares now and then, viewing those to the rear by using his mirrors. He had looked at them not less than fifteen to twenty minutes before the collision and noted that they were all burning. It was chilly, and as the Kays' vehicle approached the truck at about 1:30 on the morning of September 7, Donald sat in the front seat, trying to keep warm, his feet drawn up against his chest, his head down on his knees, and his arms wrapped around himself. Mr. Kays saw neither the truck nor the flares. When his vehicle struck the truck, Donald slid forward and hit on the floorboards. He immediately got out and ran over to the station wagon. About the time he got there, Mr. Kays was out and they began assisting the others from the station wagon, which had begun to burn.

Between Rawlins and the scene of the accident, Mr. Kays had passed two vehicles, one driven by L. M. Sumner. Mr. Kays had followed him until he slowed to about forty in order that Mr. Kays would pass. Shortly thereafter Mr. Sumner became conscious of the fact that the lights of the Kays' station wagon had disappeared. Prior thereto, traveling one-half to three-fourths of a mile behind the Kays, he did not see brake lights go on nor did he see their vehicle anywhere but on the right-hand side of the road, and no other vehicles overtook or passed either of them. As he approached, Mr. Sumner saw the Kays' vehicle turned on its top in the left lane. He was probably two car lengths from the truck when he saw it. He observed no flares.

The second vehicle Mr. Kays had passed was driven by Mrs. Belva Moleton. When she was about a half-mile from the accident scene she saw the fire in the highway. She noticed the Sumner car parked ahead and she pulled her car up behind it. When she got out of her car she noticed the truck to the right of the highway. She was about four car lengths from the truck when she noticed it. She saw no flares.

The Kays were taken from the scene of the accident to the Laramie hospital by Mr Sumner and Mrs. Moleton. After their departure and before the arrival of a highway patrolman, Donald Investigated the area and noted he then had only a flare left at the front of his truck. He went back to the rear and found one flare off to the right hand of the road, perhaps twenty-five feet, and just about even with the rear of the truck, still burning, although seemingly less bright. He brought it back and set it down at the rear of the truck, and it brightened. He could not find the third flare.

A Wyoming Highway Patrolman arrived at the scene of the accident around 2 a. m. He observed one flare in front of the truck and one behind. He found a third flare lying at the side of the road. After daylight he observed some faint brake marks on the highway at the scene of the accident. The longest one was 114 feet and the other 25 feet. The patrolman described them as just faint marks, 'Not real hard brake skids at all, but they did come down to the left-hand or side of the road and cut across and run in the corner of the truck.' The patrolman testified that ordinarily such tracks would not indicate that anyone turned at a high speed from the left lane toward the truck. He stated there was no way to check treads or anything of that kind to determine whether the marks came from one of the vehicles involved in the collision.

Appellant's allegations of error on the part of the trial court are:

1. That the negligence of the plaintiff Robert N. Kays as found by the trial court was in truth and in fact the sole, only, and proximate cause of the accident and that it was error on the part of the trial court to find, after determining that the plaintiff Robert N. Kays was negligent, that there was any negligence of the defendant which contributed to the injuries sustained by the other plaintiffs.

2. That the plaintiff Robert N. Kays and his wife were engaged in a joint enterprise at the time and place of the accident involved and that the negligence of Mr. Kays as found by the trial court effectively bars recovery by his wife.

It should perhaps be noted that appellant does not argue in this court the theory of joint enterprise insofar as the Kays' children are concerned.

In his argument on point one, appellant admits that the truck was driven to a point where approximately three feet of the left rear corner of the trailer remained upon the main-traveled (oiled) portion of the highway. Although he notes there is...