Norfolk v. State, 2968

• Decision Date: 04 April 1961
• Docket Number: No. 2968,2968
• Citation: Norfolk v. State, 360 P.2d 605 (Wyo. 1961)
• Parties: Dean NORFOLK, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 605

360 P.2d 605

Dean NORFOLK, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 2968.

Supreme Court of Wyoming.

April 4, 1961.

John P. Ilsley, Gillette, for appellant.

Norman B. Gray, Atty. Gen., and W. M. Haight, Deputy Atty. Gen., and Thomas Morgan, County and Pros. Atty. of Campbell County, Gillette, for appellee.

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

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

Dean Norfolk, the appellant herein, was convicted on November 12, 1959, of reckless driving in violation of § 31-125, W.S.1957, which reads as follows: 'Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.' The case was tried to a jury. At the close of the testimony of the state, appellant moved for a directed verdict in his favor. This motion was denied. The appellant did not introduce any testimony. After the jury returned a verdict of guilty, the appellant made a motion for judgment in his favor notwithstanding the verdict of the jury. The motion was denied and the court rendered judgment imposing a fine upon the appellant. From that judgment the appellant has appealed to this court.

The evidence is substantially as follows: Highway 14-16 runs westerly and easterly but somewhat southeasterly along the north part of Gillette, Wyoming. First Street in Gillette runs along this highway, at least in part. Streets run east and west, avenues north and south. Third Street at Osborn Avenue is a little more than a block south of the foregoing highway. Two and a half blocks east of Osborn Avenue is State Highway 59, commonly called the Douglas Highway, which runs north and south. At that place Third Street is about a block south from Highway 14-16. It joins Highway 14-16 about 600 feet west of Highway 59.

About 9:30 p. m. on May 16, 1959, Sheriff McGee and Highway Patrolman Thrasher were sitting in a highway patrol car on Highway 14-16. The sheriff and Thrasher saw a Ford station wagon, brown and cream colored, going east on the highway. Thinking that it was perhaps going too fast they alerted the policemen of Gillette to watch the station wagon. They followed the vehicle going east for several blocks. The section wagon turned south on Osborn Avenue and practically stopped. The sheriff and the highway patrolman followed but turned west at the next corner while the station wagon turned east on Third Street. Both witnesses testified that when they saw the station wagon in town it was not traveling with a reckless disregard to life and property.

Witnesses Fritzler and Sherard were police officers of Gillette. The former testified that the first time he saw the appellant was downtown in Gillette between seven and eight o'clock on the evening of May 16, 1959, 'just driving around'. Being alerted, both of the officers were out later to watch for the station wagon. They drove along Highway 14-16. They first 'glimpsed' the station wagon when it was at the intersection of Third Street and Brooks Avenue, a block and a half west of Highway 59. According to Sherard the station wagon was going too fast for comfort. The officers next saw the station wagon at the intersection of Third Street and Highway 59. There was a stop sign at that place about 50 feet west from Highway 59. There was a machine shop practically at the corner of the intersection which obstructed the view of any traffic coming north on Highway 59 and one would have to get close to the highway to observe as to whether or not anyone was coming along the highway from the south. The driver of the station wagon ignored the stop sign. The highway at that place was somewhat higher than Third Street. The driver of the station wagon just 'jumped' across Highway 59. The police officers were then traveling about 60 miles per hour. The driver of appellant's car, driving east, got to the junction of Third Street and Highway 14-16 first. The police officers were then about 150 feet west from the junction. So the appellant's car apparently was being driven faster than 60 miles per hour. The police officers put on the red light but no attention was paid to it. The police officers in trying to catch up with the appellant's car increased the speed of their car to 90 miles per hour but were unable to catch up. They then called the highway patrolman who answered the call and he found the appellant at Wyodak about seven miles east of Gillette and caused the appellant to drive back to Gillette to the police station. The information filed in this case followed. In the appellant's station wagon were six companions, including two girls from Upton. Two cars were on the highway traveling westward while the appellant's station wagon was being driven. It, however, according to the testimony, kept on the right side of the highway.

1. Counsel for appellant contends that the state failed to show who drove the station wagon to Wyodak and just before. It is true that there is no direct evidence on that point but, as heretofore stated, Police Officer Fritzler testified that he saw the appellant drive around town between seven and eight o'clock on the evening of May 16th. Appellant was driving the station wagon when found at Wyodak and when he arrived at the police station. The testimony shows that he was the owner of the station wagon. We think these facts and circumstances were sufficient to justify the jury in finding that he was the driver.

2. Counsel for appellant contends that the evidence is insufficient to show the appellant guilty of reckless driving beyond a reasonable doubt. In considering as to what the legislature meant by reckless driving, it is stated in People v. Nowell, 45 Cal.App.2d Supp. 811, 114 P.2d 81, 83, citing numerous cases '* * * 'Willful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.' * * *' Howard v. Howard, 132 Cal.App. 124, 22 P.2d 279, 281.

See also 61 C.J.S. Motor Vehicles § 611 (1949). There can be no doubt that what appellant did in the case at bar was intentional, and in determining as to whether or not he was guilty of reckless driving within the meaning above mentioned the main facts to be considered in that connection are as follows: (1) Driving at 60 miles per hour or more while driving along Third Street in Gillette in a district which was apparently residential; (2) disregarding the stop sign at the intersection of Third Street and Highway 59, particularly because that intersection was a dangerous crossing on account of the obstruction by a building on the corner; (3) driving at a speed in excess of 90 miles per hour along the road from Gillette to Wyodak; (4) the fact that there were six occupants in the station wagon aside from the appellant so that if something had gone wrong with the car unfortunate consequences might have resulted; (5) the fact that there was traffic along the road; and (6) the fact that appellant drove the car at night along the road.

Reckless driving is condemned by the statute even though no actual injury to persons or property may result. State v. Nolan, 1 N.J.Super. 280, 64 A.2d 238. See also Annotation, 52 A.L.R.2d 1337, 1369, § 28. As stated in this connection by the court in People v. Nowell, supra, at 114 P.2d 83:

'* * * If, in order for a driver to be guilty of wilful misconduct he must have knowledge that his course of conduct will probably cause a catastrophe, then one may deliberately take a chance on an accident and yet not be said to drive recklessly, provided only that the odds are more than even that he will escape without a scratch. * * *'

Passing a stop sign does not necessarily constitute reckless driving. People v. Garo, 208 Misc. 496, 144 N.Y.S.2d 107. But when the stop sign is at a corner fraught with constant danger by reason of a driver not being able to see a car coming from another direction, then a different situation is presented, particularly when a driver with six passengers should consider the welfare of his passengers as well as his own.

The legislature of this state has considered what is and what is not safe driving. In Ch. 55, S. L. of Wyoming, 1959,...