Rienecker v. Lampman, 2104

Decision Date12 December 1939
Docket Number2104
PartiesRIENECKER v. LAMPMAN
CourtWyoming Supreme Court

APPEAL from the District Court, Big Horn County; C. D. MURANE Judge.

Action by N. P. Rienecker against Charles F. Lampman for personal injuries suffered by plaintiff in an automobile accident. From a judgment denying recovery, plaintiff appeals.

Affirmed.

For the appellant, there were briefs by Ray E. Lee and Thomas M McKinney of Cheyenne, and oral argument by Mr. McKinney.

The testimony of defendant indicates that he did not use proper care in backing his car at the time of the accident. He should have kept a lookout to the rear. 42 C. J. 935; Pierson v. Lyon, 90 N.E. 693; Sheldon v James, 166 P. 8; Pease v. Gardner, 93 A. 550; Oliver v. Weaver, 212 P. 978; Johnston v. Johnson, 279 N.W. 139, and the annotation following, reported in 118 A. L. R. 233, 242; 45 C. J. 970. Defendant cannot invoke the violation of the Town Ordinance relating to jay-walking. 45 C. J. 969; Watts v. Traction Company (Ala.) 57 So. 471; Rotter v. United R. Co., 187 N.W. 271; Webber v. Beason, 164 N.W. 255; Scott v. Dow, 127 N.W. 712. The violation of said ordinance will not defeat a recovery. Cooley on Torts, 4th Ed., § 484, p. 402; 104 Mass. 59, 63; 2 McQuillin Municipal Corporations, 781, 782. An ordinance not relative to the case is inadmissible. Sheldon v. James, 166 P. 8.

For the defendant and respondent, there was a brief and oral argument by Ernest J. Goppert of Cody.

The evidence shows that appellant's conduct was in violation of an ordinance of the Town of Greybull. The appeal record does not contain a certified copy of the journal entry or judgment, or the date of entry. Appellant's brief does not contain a statement of the points and authorities, upon which he relies, as required by the rules of this court. Points not raised or discussed in briefs are waived. Imp. Co. v. Bradley, 6 Wyo. 171; Riordan v. Horton, 16 Wyo. 363; National Bank v. Ludvigsen, 8 Wyo. 230; Barber v. Spray, 25 Wyo. 52; Worland v. Davis, 31 Wyo. 171; Ins. Co. of Hartford v. Lloyd, 40 Wyo. 44; In re Demorest's Estate, 41 Wyo. 189; International Harvester Co. v. Leifer, 42 Wyo. 283; Henderson v. Land, 42 Wyo. 369; Holly Sugar Company v. Fritzler, 42 Wyo. 446; Ideal Bakery v. Schryver, 43 Wyo. 108; Lynch v. Burgess, 44 Wyo. 197. A driver in backing his car from the curb must use ordinary care. Negligence in doing so is a question of fact. 5 Am. Jur. 679; Huddy on Automobiles, 9th Ed., Vol. 3-4, p. 218; 2 Blashfield's Automobile Law 272, 274. The case of Sheldon v. James, cited by appellant, favored defendant's contentions. Appellant was guilty of contributory negligence as shown by the evidence. The determination of the court, sitting as a trier of fact, will not be disturbed on appeal. Peterson v. Johnson (Wyo.) 28 P.2d 487; Kumor v. Scottish Union & National Ins. Co. (Wyo.) 33 P.2d 916; Willis v. Willis (Wyo.) 49 P.2d 670; Price v. Gabel (Wash.) 298 P. 444; Turner v. Good (Wash.) 8 P.2d 414. The violation of an ordinance has the same effect as a violation of a statute. 45 C. J. 969; Heflin v. Swenson (Minn.) 232 N.W. 265; Nakamoto v. Testino (Cal.) 37 P.2d 864. The question of contributory negligence was for the jury. Sears v. Goldsmith (Ore.) 298 P. 219; Fox v. Sherwood (Cal.) 45 P.2d 1026; Nelson v. Malcolm (Cal.) 53 P.2d 1015; Nicholas v. Chloupek (Cal.) 72 P.2d 561; Bobst v. Hardisty (Wash.) 19 P.2d 567. To the same effect are the last three of the cases cited by appellant in his brief. Johnston v. Johnson (Iowa) 279 N.W. 139. The court, as a trier of fact, was authorized on the evidence to find that the appellant was contributorily negligent for doing the acts in violation of the Town Ordinances of Greybull, in which event, there could be no recovery by him. The court undoubtedly so found.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This cause comes here by direct appeal from a judgment of the district court of Big Horn County in an action wherein N. P. Rienecker was plaintiff and C. F. Lampman was defendant, and arose in consequence of injuries suffered by Rienecker in an automobile accident. He was not successful in the trial court and now asks that the judgment below be reversed as contrary to law and not sustained by the evidence. The action was tried to the court without a jury.

The material facts involved are not so very greatly in dispute and may be briefly stated thus: On or about two o'clock in the afternoon of September 4, 1936, both the plaintiff and the defendant had driven their automobiles to the business section of the town of Greybull, and had gone to the post office near by for their mail. Lampman parked his car at about a forty-five degree angle with the curb not far from the post office aforesaid. A number of people came in their cars, got their mail at this time of the day, and then departed, and the two "busy times" in that vicinity are apparently two and five o'clock respectively.

After obtaining his mail Lampman, who had driven motor vehicles for many years, returned to his car, in which his wife was then seated, started the motor, and after looking back toward his right to see if everything was clear in the line of traffic in that direction, and finding it to be so, he proceeded to back his car out into the street. There were no cars immediately to Lampman's left side. As he moved his car thus he continued to look back and saw no one until he had covered a distance of some four or five feet, when the rear of his car struck an object--the plaintiff as it subsequently proved--some one "hollered," and Lampman reversed the movement of his vehicle, returned to the curb, got out of his car, and went to the plaintiff's assistance. Lampman did not see Rienecker until the latter was struck by the automobile.

Before the movement of the Lampman car had commenced it appears that Rienecker had left the sidewalk and curb of the street, had passed the car aforesaid, gone on out into the street, stopped a garbage truck operated by the town of Greybull, and engaged the driver thereof in conversation for two or three minutes. The town truck was thus stopped by Rienecker in such a way on the street that it was impossible for Lampman to back out into the line of traffic until the truck had been moved away. While carrying on the conversation with the driver of the garbage truck Rienecker stood with his back towards the Lampman car, his left foot resting on the ground, his right foot placed on the running board of the truck, and his arms resting on the window frame of the truck's cab. Another person was in the cab, one McFarland, and this party sat next to the window of the truck. During the conversation aforesaid, the motor of the truck, which was a noisy one, was allowed to run continuously. The truck itself was a low gravel truck, with the driver located on its left side as usual. The Lampman car was a sedan, with two small windows in the rear.

Rienecker was struck by the state license plate on the Lampman car, which was slightly bent in consequence. Rienecker's left leg was crushed against the town truck and severely injured.

It is true there was testimony by and on behalf of Rienecker that when he went out in the street he spoke to Lampman as he passed the latter's car and that Lampman was engaged in reading mail matter; and that the garbage truck was twenty or more feet distant from the rear of the Lampman car at the time that car was standing at the curb. The evidence was in conflict regarding these matters, but in view of the general finding of the court, presently to be mentioned, we are obliged to take as established the facts as testified to by the defendant and his witnesses. Branson v. Roelofsz et al., 52 Wyo. 101, 70 P.2d 589; Perko v. Rock Springs Commercial Co., 37 Wyo. 98, 106, 259 P. 520.

Plaintiff's petition charged the defendant with driving his car negligently in not having his "motor vehicle under absolute or any control" and that he failed to operate and control it "as a reasonably prudent person" would have driven and operated it "under similar circumstances." The defendant's answer was a general denial and a claim of contributory negligence on the part of the plaintiff.

The district court found generally for the defendant, and entered the judgment as indicated above, that plaintiff take nothing by his petition and that Lampman recover his costs.

The contentions advanced by appellant in order to obtain a reversal of the judgment would seem to be that the defendant was negligent in backing his car in the manner he did; that there was no contributory negligence shown on the part of the plaintiff; that the judgment is not sustained by the evidence, and that the last clear chance doctrine is involved in the case. 2 Blashfield Cyclopedia of Automobile Law and Practice, Page 274, Section 1101, states that:

"The question of whether, in backing an automobile, the operator has exercised the degree of care rendered necessary by the circumstances of the case, is generally one of fact."

In Nelson v. Mitten, 218 Iowa 914, 255 N.W. 662, it was held as a matter of law that a truck driver was not liable for injuries inflicted upon a person caught between the truck and a building when the vehicle was backed and where plaintiff had voluntarily placed himself in a position of danger behind the truck without notice. It appeared that plaintiff was in a safe place at the time the truck was started and its driver had no knowledge that plaintiff was going to go behind the vehicle.

In Czarnetzky v. Booth, 210 Wis. 536, 246 N.W. 574, it was held that the jury should determine as to the negligence of a truck driver and the contributory negligence of the plaintiff, who sustained injuries when caught...

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