Neal v. Wailes

• Citation: 346 P.2d 132
• Decision Date: 10 November 1959
• Docket Number: No. 2845,2845
• Parties: Ike NEAL, Appellant (Plaintiff below), v. Gordon L. WAILES, Appellee (Defendant below).
• Court: United States State Supreme Court of Wyoming

Page 132

346 P.2d 132

Ike NEAL, Appellant (Plaintiff below), v. Gordon L. WAILES, Appellee (Defendant below).

No. 2845.

Supreme Court of Wyoming.

Nov. 10, 1959.

George W. Hufsmith and Robert A. Hufsmith, Jackson, for appellant.

A. Joseph Williams, Cheyenne, for appellee.

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

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

This is an action brought by Ike Neal, plaintiff herein, against Gordon L. Wailes, defendant, to recover damages in the sum of $1,885 by reason of the death caused by the defendant herein of three animals on a highway. The case was tried commencing on July 13, 1957. Judgment was entered on July 31, 1957, in favor of the defendant pursuant to a verdict of a jury and from that judgment the plaintiff, Ike Neal, has appealed to this court. The parties will be mentioned herein as in the court below.

The action herein was commenced on December 10, 1955. In the petition plaintiff alleged that on or about July 1, 1955, at about 8:30 p. m., some fifteen head of livestock of plaintiff were along the highway a short distance from the town of Jackson in Teton County in this state and were being driven by Donald K. Hart, an employee of the plaintiff, the intention being to drive the animals through a gate located on the north side of the highway and onto the property where the animals were being pastured; and at that time the defendant drove an automobile along the highway at an unlawful speed and negligently killed three of plaintiff's animals, namely, a red sorrel registered quarter mare of the value of $1,500, an Appaloosa horse of the value of $350 and a jenny burro of the value of $35. Judgment was asked for the sum of $1,885.

The defendant filed an answer in the case denying the allegations of the petition and in a cross-petition alleged that on account of plaintiff's negligence the defendant's automobile was damaged in the sum of $1,425. The negligence set forth is that plaintiff allowed his horses to wander along the highway in violation of § 11-507, W.S.1957 (§ 56-1813, W.C.S.1945), which forbids livestock to run at large in a fenced public road; that the plaintiff was negligent in not providing some warning lights or signals to indicate the presence of animals on the highway; and that the plaintiff knew or should have known with exercise of due care that automobiles traveling upon the highway could not have seen the horses, particularly when blinded by the lights of oncoming traffic.

At the close of the evidence in this case, plaintiff moved for judgment and after the return of the verdict moved for judgment notwithstanding the verdict of the jury. These motions were overruled.

1. It is contended by counsel for the plaintiff that no negligence on the part of the plaintiff was shown in the case, but that the uncontroverted evidence herein shows that the defendant in driving his automobile was negligent as a matter of law when he killed the animals of plaintiff on the highway. It appears that on the night of July 1, 1955, when it was dark, defendant started out driving west of the town of Jackson, having with him three passengers. There seems to have been some curve at the place where the animals herein mentioned were killed. The extent of the curve has not been shown in the record, so we are unable to say whether or not that should have made some difference in the rate of speed at which defendant drove his automobile. When he started west out of the town of Jackson, he was driving at the rate of approximately thirty-five miles an hour which, according to his testimony, was subsequently increased to about sixty miles an hour. The sheriff of the county believed the speed of the car to have been somewhat greater although he did not testify as to the exact rate of speed. Defendant met four or five automobiles traveling toward Jackson at the ordinary rate of speed. He dimmed his lights and after the last of the oncoming cars had passed, he struck the burro heretofore mentioned and lifted his foot from the accelerator of the car. He next struck and killed the Appaloosa horse. The door on his left flew open. He was thrown out of the car and skidded along the road some seventy-five feet. The automobile thereafter struck the mare, went off the road, hit a pole and stopped in some willows along the road. All of the occupants of the car apparently were taken to the hospital thereafter. Just how severely the occupants were injured does not appear nor is it material in this case.

As above stated, it is contended that under these facts the defendant was guilty of negligence as a matter of law in killing the animals. The jury found to the contrary. The presence of the animals on the highway in the dark of the night is, to say the least, very unusual. A traveler along the highway in a car at night would hardly be expecting to find animals in his path. It is not proper for this court in a case tried before a jury to exercise any authority beyond the periphery of its ordinary power but leave to the jury the function of finding the facts as heretofore exercised under the rules of common law, reconciling the conflict in the evidence, and drawing its own inference, if more than one inference is permissible. We believe that the case at bar presents no exception and that we should follow the ordinary rule. We cannot, we think, say that as a matter of law the defendant was negligent at the time of the accident heretofore mentioned.

2. Section 3-2421, W.C.S.1945 (superseded, Rule 87, Wyoming Rules of Civil Procedure 1957) provided that: 'When, by the verdict, either party is entitled to recover money of the adverse party, the jury, in its verdict, must assess the amount of recovery.' Section 3-3606, W.C.S.1945 (superseded, Rule 87, Wyoming Rules of Civil Procedure 1957) required that: 'When a counter-claim or set-off established at the trial exceeds the plaintiff's claim so established, judgment for the defendant must be given for the excess; or, when it appears that the defendant is entitled to any affirmative relief, judgment shall be given therefor.'

Counsel complain that the court failed to give the proper instruction in order to carry out the provisions of the foregoing statutes and that it presented only two forms of verdict to the jury, one finding for the plaintiff in the amount of _____ dollars and the other for the defendant in the amount of _____ dollars. The record in this case does not show as to what and how many forms of verdict were given to the jury by the court, and we cannot, accordingly, consider the objection here made. See in this connection 64 C.J. 1062 and 89 C.J.S. Trial § 492. Plaintiff in this case failed to ask for any additional instructions on the part of the court and evidently stood by and permitted the court to submit to the jury its forms of verdict without making any objection. Plaintiff should hardly be permitted at this late date to complain of an error, if any there was, which could easily have been avoided by a simple request on the part of his counsel in the case. It is stated in 53 Am.Jur. Trial § 1035, p. 716, speaking of the opportunity of counsel to know of the forms submitted (as they had in the case at bar): 'If no objection is made by counsel at such time, it is usually considered that objections as to form are waived.' That should at least be true where, as in this case, the verdict rendered by the jury is quite clear, and we cannot see how the plaintiff was in any way prejudiced by reason of the matters herein mentioned by his counsel.

3. The verdict returned by the jury in the case at bar was as follows: 'We, the jury in the above entitled action, find for the Defendant, and against the Plaintiff, and assess his damages in the amount of nothing. / s/ Burr Robins, Foreman.' Since the finding against the plaintiff would give no occasion for assessment of any damages in his favor, the clause 'and...