Oeland v. Neuman Transit Co., s. 2977

• Citation: 365 P.2d 806
• Decision Date: 31 October 1961
• Docket Number: Nos. 2977,2978,s. 2977
• Parties: Arthur E. OELAND, Administrator of the Estate of Edward L. Boedeker, deceased, Appellant, (Plaintiff below), v. NEUMAN TRANSIT COMPANY and Kenneth Boyer, Appellees, (Defendants below). Arthur E. OELAND, Administrator of the Estate of Bernard Fuller, deceased, Appellant, (Plaintiff below), v. NEUMAN TRANSIT COMPANY and Kenneth Boyer, Appellees, (Defendants below).
• Court: United States State Supreme Court of Wyoming

Page 806

365 P.2d 806

Arthur E. OELAND, Administrator of the Estate of Edward L. Boedeker, deceased, Appellant, (Plaintiff below), v. NEUMAN TRANSIT COMPANY and Kenneth Boyer, Appellees, (Defendants below).

Arthur E. OELAND, Administrator of the Estate of Bernard Fuller, deceased, Appellant, (Plaintiff below), v. NEUMAN TRANSIT COMPANY and Kenneth Boyer, Appellees, (Defendants below).

Nos. 2977, 2978.

Supreme Court of Wyoming.

Oct. 31, 1961.

Robert R. Rose, Jr., Casper, for appellant.

Edward E. Murane, of Murane, Bostwick & McDaniel, Casper, for appellees.

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

Mr. Justice HARNSBERGER delivered the opinion of the court.

The administrator of the estates of both Fuller, deceased, and Boedeker, deceased, brought separate actions for damages for their wrongful deaths against the same defendants. These actions were consolidated for trial before a jury which, in each case, returned its verdict in favor of the defendants, and judgments accordingly were rendered thereon. Plaintiffs have appealed.

In both actions it was alleged the negligent operation of a trailer-truck combination by its driver, defendant Boyer, caused it to collide with the Pontiac automobile driven by the deceased Fuller, resulting in his death and that of the deceased Boedeker, who was a passenger in the Pontiac, together with one Marvel who survived.

The collision occurred in an area where the highway curves at the crest of a hill to which the highway from the north ascends within a distance of seven hundred feet to about twenty-five feet in hight above mesne ground level and from which the highway then descends going south about eighteen and three-fourths feet to mesne ground level over a distance of nine hundred feet.

A small model received in evidence was stipulated as being generally similar to the vehicle driven by Boyer. It consisted of a truck or tractor having two front or steering wheels, one of which was on either side of the truck, and eight driving wheels at the rear. Four of these drivers were on either side of the truck, mounted in pairs referred to as duals, with one set of duals being immediately in front of the other. On the bed of the truck was a 'fifth' wheel, near the rear, mounted horizontally. This supported the front end of the trailer. The rear end of the trailer was supported by eight wheels mounted in the same manner as the drivers of the truck.

Testimony and evidence reveal the following: The truck-trailer combination was traveling from north to south and the Pontiac was traveling from south to north; the eye level of the truck driver in the cab was seven feet and seven inches; the top of the Pontiac headlights was thirty-seven inches from the road; the weight of the truck-trailer combination, as it was loaded, was approximately 67,000 pounds; the oil mat of the highway in the accident area was twenty-eight feet in width; the curve was one of five degrees per one hundred feet and commenced three hundred feet north from the top of the hill and ended three hundred and fifty feet south of the top of the hill, thus making the length of the curve six hundred and fifty feet; Fuller was driving the Pontiac and Boedeker was asleep in the rear seat of the Pontiac, while Marvel was in the front seat asleep beside the driver; the three occupants of the Pontiac went to Rawlins about 6:00 p. m., after first purchasing a six-pack of beer, and en route purchasing three bottles of beer; at Rawlins, between 7:30 p. m. and 9:00 p. m., Fuller had five to seven whiskies, and when the three men left the bar they acted as if they had a little too much and they staggered; around 9:00 p. m. two girls got in the car with Fuller, Boedeker and Marvel and the five went to a restaurant where one of the men was served beer and the other two were served with mixed drinks; Fuller then got a six-pack of beer from a liquor store, and each of the five persons drank one bottle; after driving around Rawlins until 12:00 midnight, the girls went home; about midnight Fuller had two beers at the bar and two beers with a lady, after which he left the bar about 1:20 a. m. Boyer was the only living eyewitness of the accident.

In summary, Boyer testified that the truck-trailer combination was fifty-nine and one-half feet in length, the trailer body being forty-four feet in length, but as the trailer overlapped the tractor, the length of the tractor was left undetermined; on October 1, 1958, about the hour of 1:45 a. m., Boyer was driving the truck-trailer combination upon his right side of the highway, coming from the north toward the south, at a speed of between forty-seven to fifty miles per hour as he approached an area with which he was familiar where the highway curved to his left as it ascended and curved around a hill; the night was dark cold and cloudy and the highway was dry; there were no trees or vegetation in the surrounding area except sagebrush; as Boyer approached the curve and hill, the first thing he noticed was reflection of headlights of oncoming traffic; this did not mean anything to Boyer except there was some traffic coming toward him, so he 'held' on his own side of the road; as the Pontiac flashed into view, the first thing that was apparent then was tremendous speed and that the oncoming Pontiac was on Boyer's side of the road, apparently not realizing there was a curve; the Pontiac was going right on straight ahead; Boyer instantaneously jerked his truck to the left and immediately back hard to the right, realizing that the Pontiac had started to make the curve; in Boyer's own words, 'as he flashed past my cab, he cleared me and I thought I was in the clear'; up to that point Boyer could not see anything but the lights of the Pontiac; Boyer 'hit' the brakes when he first saw the car's headlights and at that time he was going approximately forty-seven miles an hour; the first impact of the Pontiac was with the left-front driver tire and wheel of the truck and occurred at a time when the right-front steering wheel of the truck was at the extreme right edge of the oil mat; and the first impact occurred approximately at the crown of the hill.

Photographic exhibits in evidence showing the highway at the accident area were interpreted by Boyer as indicating that skid marks, there shown to extend in a substantially straight line, were made by the rightrear dual wheels of the trailer when he first applied his brakes. Except at intermittent points, these skid marke continued for about seventy-five feet south to a point which Boyer fixed as being approximately that of first impact. The inner-right dual tire marks of the trailer were shown to be two feet four and one-half inches inside the left or wrong lane of the combination vehicle at the point the skid marks began. Other skid marks, commencing about thirty-six feet four inches from the point of impact as fixed by Boyer, were identified as being made by the skidding of the left-rear dual wheels of the trailer and began at a point about six feet inside the left or wrong lane of the combination vehicle. The absence of left-dual-wheel skid marks of the trailer between the place where the right-rear duals of the trailer began to skid and where the left-dual-wheel skid marks commenced was explained as caused by the left...