Potts v. Brown

• Decision Date: 18 April 1969
• Docket Number: No. 3723,3723
• Citation: 452 P.2d 975
• Parties: Louise POTTS, Appellant (Defendant below), v. Ruth BROWN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 975

452 P.2d 975

Louise POTTS, Appellant (Defendant below), v. Ruth BROWN, Appellee (Plaintiff below).

No. 3723.

Supreme Court of Wyoming.

April 18, 1969.

W. A. Smith, of Smith & Meyer, Lander, for appellant.

G. L. Spence, Riverton, Vincent A. Vehar, Evanston, for appellee.

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

Justice McEWAN delivered the opinion of the court.

This is a suit by appellee, plaintiff below, for personal-injury damages arising from a collision of automobiles driven by her, and appellant, defendant below, at an uncontrolled, ninety-degree intersection in Evanston, Wyoming. The accident occurred on July 3, 1964, at 2:15 p. m., on a bright, sunny afternoon. Although the streets do not run true north-south, eastwest, they will be so designated for clarity.

Plaintiff was proceeding north on Tenth Street which was 47 feet 5 inches wide and was on defendant's left. Defendant was driving west on Summit Street which is 50 feet 9 inches wide. The point of impact was in the northeast quadrant of the intersection. The speed limit was 20 miles per hour. The left front of defendant's vehicle collided with the right rear of plaintiff's car. Plaintiff alleged that by reason of defendant's negligence she sustained serious injuries to her head, neck, and back, and that as a result she was required to undergo major surgery and incurred hospital and medical expenses of $2000, lost wages of $1200, and demanded judgment for a total of $90,000.

The jury returned a verdict for plaintiff and assessed her damages in the amount of $16,000. Judgment was entered and defendant appeals.

Defendant's contentions that the trial court erred in permitting witnesses to testify without proper foundation as to the speed of the two vehicles, in admitting certain exhibits, in denying motions for directed verdict judgment notwithstanding the verdict and new trial, and in rejecting certain instructions will be discussed in that order.

As we said in Colwell v. Anderson, Wyo., 438 P.2d 448, 450, 'a court has considerable discretion in passing upon the qualification of a nonexpert witness to testify as to the speed of moving objects.' In that case at p. 451, we also cited 32 C.J.S. Evidence § 546(53), p. 239:

"Accordingly, a witness who observed the moving object in question will be permitted to estimate its speed if he possesses some knowledge or experience, however slight, which will enable him to form an opinion. The qualification of the witness to judge accurately goes to the weight which the jury may give his testimony rather than to is competency. * * *"

All of the witnesses to whose testimony defendant objects possessed some experience with moving vehicles, were of reasonable intelligence, and, where they had observed the moving vehicle or vehicles, were qualified to give opinion testimony. While it may be that the witnesses' opportunities for observation were slight, this would affect the weight that may be given to their testimony by the jury rather than the competency.

The jury was instructed that it was their exclusive province to weigh and consider all evidence presented to determine the credibility of all witnesses, and that they would take into consideration the demeanor of witnesses, their apparent intelligence or lack of intelligence, their means of knowledge of the facts testified to, and the interest, if any, which a witness may have in the outcome of the trial. They were advised that they were the exclusive judges of the facts and the effect and value of evidence, and that they were the sole judges of the credibility of the witnesses and of the weight to be given their testimony.

Witness Gale Lee, 14 years of age, was near the alley on Tenth Street one-half a block north of the accident, and had a clear view of the accident intersection. He had a motorcycle license and had driven his motorcycle, which had a speedometer, on the streets of Evanston every day for two months. He knew the speed limit in the area was 20 miles per hour and had driven his motorcycle along other vehicles that were traveling within the speed limit. He had observed automobiles that he had ridden in while they were being driven within the speed limit. He had ridden in his father's automobile every day and as a result was aware of the speed of an automobile being driven at 20 miles per hour. On two occasions, he had ridden in a police car with his father who was a city policeman. He saw the accident; he turned around and saw the defendant's car coming, 'looked real fast to me.' He testified that plaintiff's car was almost through the intersection when defendant's car hit plaintiff's car in the rear, and that defendant's car was going faster than plaintiff's car. Lee had the defendant's vehicle in view for 45 feet prior to the collision, and plaintiff's car was in his line of vision 'Just real quick.' He testified that plaintiff's vehicle was going 15 to 20 miles per hour and defendant's vehicle about 40 miles per hour. There was no testimony or evidence by defendant that plaintiff was traveling more than 20 miles per hour. An accident report prepared by one of defendant's witnesses was received into evidence without objection by defendant, which report showed plaintiff's speed as 20 miles per hour before the accident. Both Penny Brown and Ruth Brown testified as to the speed of plaintiff's automobile.

Penny Brown, a 15-year-old witness, was a passenger seated in the right-front seat of plaintiff's automobile at the time of the collision. She has a beginner's permit and had been interested in driving since she was 13. She knew the speed limit in town was 20 miles per hour, and while she was practice-driving with her parents she had to keep within the speed limit. She testified that her mother, the plaintiff, was driving 20 miles per hour as she approached the intersection. She saw the defendant's vehicle when the car in which she was riding was 25 feet from the intersection and the defendant's car was 75 feet from the intersection. While she did not testify as to the speed of defendant's vehicle in miles per hour, she did testify that the defendant's vehicle traveled twice the distance that the plaintiff's vehicle traveled during the same period of time.

Ruth Brown, the plaintiff and driver of one of the vehicles, testified without objection that she was not going over 20 miles per hour at the time of the accident, and, over objection, testified that defendant was driving '40 miles per hour at least.' She was 35 years of age and had driven a motor vehicle for 18 years, was aware of speed limits, and could tell if a car was going two times as fast as her car. She saw defendant's car when it was 100 feet from the intersection and her car was 30 feet from the intersection. She traveled 65 feet from the time she first saw defendant's vehicle until the point of impact. According to her testimony, the defendant's car was 70 feet from the intersection when she (plaintiff) entered the intersection.

Defendant contends that the court should not have admitted into evidence certain photos because they were prejudicial, misleading, or confusing, and cites Edwards v. Harris, Wyo., 397 P.2d 87, wherein we said we think trial judges should always guard against the allowance of photos which tend to be confusing, misleading, or prejudicial to a litigant. Defendant points out in her brief that the photos were repetitious of other evidence, and contends that the photographs were misleading in that the pictures were taken in the winter when there was no foliage on the trees. Defendant objected to certain of the pictures taken through the windshield of plaintiff's automobile and one other car. The photos taken from the interior of the vehicles were admitted for...