Ries v. Cheyenne Cab & Transfer Company, 2050

Citation79 P.2d 468,53 Wyo. 104
Decision Date25 May 1938
Docket Number2050
PartiesRIES v. CHEYENNE CAB & TRANSFER COMPANY
CourtUnited States State Supreme Court of Wyoming

APPEAL from the District Court, Laramie County; V. J. TIDBALL Judge.

Action by Grace L. Ries against the Cheyenne Cab & Transfer Company a corporation, for injuries sustained in a collision between an automobile driven by plaintiff and an automobile of the defendant. From a judgment for the plaintiff, defendant appeals.

Affirmed.

For the defendant and appellant, there was a brief and oral argument by Walter Q. Phelan and Allen A. Pearson of Cheyenne.

There was no substantial evidence to support the judgment of the court below. Peterson v. Johnson, (Wyo.) 28 Pac. (2d.) 487; Wilde v. Amoretti Lodge Company, 41 P.2d 508; Fieldhouse v. Leisberg, 15 Wyo. 207; Chicago, B. & Q. Ry. Co. v. Cook, 18 Wyo. 43. Plaintiff was under a lawful duty to yield the right of way to defendant's driver and her failure to do so constituted contributory negligence. Shuman v. Hall, (N Y.) 158 N.E. 16; Huddy Encyc. of Auto Law, Vol. 3-4, p. 256, 280; Shillam v. Newman (Wash.) 162 P. 997; Knox v. Abrams, (Ore.) 286 P. 517; Vickerson v. Auto Sales Co., (Cal.) 221 P. 392; Hester v. Coliseum Motor Co. (Wyo.) 285 P. 781; Worthy v. Pate, (La.) 122 So. 727; Callahan v. Bridges (Me.) 147 A. 423. The failure of the defendant to comply with a law made for the plaintiff's protection does not excuse the plaintiff's violation of a law made for the defendant's protection O'Farrell v. Templeman, (Ga.) 146 S.E. 914; Rosenbaum v. Riggs (Colo.) 225 P. 832; Sutrim v. Speer, (Kan.) 299 P. 643; Bullis v. Ball, 98 Wash. 342; Jacobson v. O'Dette, 108 A. 653; Yuill v. Berryman, (Wash.) 162 P. 513; Rosenau v. Peterson, (Minn.) 179 N.W. 647; St. Mary's Academy v. Newhagen, 238 P. 21; Ramp v. Osborne, (Ore.) 239 P. 112. Other cases of similar import are: Ken v. Hayes, (Mich.) 229 N.W. 430; Riley v. McNaugher, (Pa.) 178 A. 6; Wildenhaim v. Knight, (R. I.) 173 A. 83; Beattie v. Parkhurst, (Vt.) 163 A. 589; Johnson v. Harrison, (Va.) 172 S.E. 259. It was plaintiff's duty to see defendant's cab approaching the intersection. Chapman v. Ewing, 24 P.2d 687. The court erred in permitting evidence of speed which occurred two blocks away from the accident. Robinson v. Fitchburg, R. R. Co., (Mass.) 7 Gray 92; City of Salem v. Webster, 192 Ill. 369; Dalton v. Chicago Ry. Co., 114 Iowa 257; Christensen v. Union Trunk Line, 6 Wash. 75; Oklahoma Ry. Co. v. Thomas, 63 Okla. 219, 162 P. 120. The verdict of the jury was given under the influence of passion or prejudice and the damages assessed were and are excessive. In this connection the court may consider amounts allowed in similar cases. Eagan v. O'Malley, 21 Pac. (2d.) 821; Chapman v. Ewing, 24 P.2d 687; Dahl v. Navy Yard Route, (Wash.) 230 P. 1119; Briglio v. Holt, (Wash.) 158 P. 347; Davis v. Waterville Co., (Me.) 102 A. 374; Davis v. Burke, (Wash) 156 P. 525; Bubar v. Fisher, (Me.) 180 A. 923; Soper v. Erickson, (Minn.) 215 N.W. 865; Chopin v. Levy, (La.) 125 So. 142; Oster v. Jones, (Ark.) 84 S.W.2d 604; Pomikala v. Cartwright, (Wash.) 16 P.2d 204; Nixon v. Hill, (Mo.) 52 S.W.2d 208; Jamieson v. Pittsburgh R. C., (Pa) 163 A. 292; McLean v. Eddy, (Mo.) 83 S.W.2d 230; Kelly v. Healy Co., (R. I.) 167 A. 107; Monkhouse v. Johns, (La.) 142 So. 347.

For the respondent, there was a brief and oral argument by John C. Pickett and Carleton A. Lathrop of Cheyenne.

The evidence does not show that plaintiff was guilty of contributory negligence. At the time of the collision, the ordinance of the City of Cheyenne provided: Of two or more vehicles approaching and being about to enter an intersection, the one approaching from the right shall have the right of way." Rec. page 127, Abstract p. 32. Garner v. Brown, 31 Wyo. 77, 223 P. 217; Christensen v. McCann, 41 Wyo. 101. The question of the plaintiff's negligence which might have contributed to her injury was properly submitted to the jury in instruction No. 5. Contributory negligence is always a question of fact to be decided by the jury. Keller v. Brown, 153 Wash. 208, 279 P. 588; Hatzakorzian v. Desk Company, 239 P. 709; McKeon v. Delbridge, (S. D.) 226 N.W. 947; Ritter v. Hicks, (W. Va.) 50 A. L. R. 1505. Instructions numbered 8 and 9 submitted to the jury the question of violation of speed ordinances. Instruction 10 defined the law concerning the right of way. Instruction 11 properly stated the law in regard to entering intersections from the left. The car from the right had the right of way. The question of which car has the right of way under given circumstances is for the jury. Blashfield's Cyclopedia of Law, Vol. II, Para. 994, 1030; American Jurisprudence, Vol. V, Para. 297, 298 and 299. Weber v. Transportation Company, 244 P. 718; Oliver v. Taylor, 205 P. 746; 47 A. L. R. 603; Hines v. Sweeney, (Wyo.) 201 P. 166. A driver approaching the intersection and having the right of way is not relieved of a duty to use due care. American Jurisprudence, Vol. V, p. 666; Thrap v. Myers, 47 A. L. R. 585; Brown v. Garner, supra and annotation in 47 A. L. R. 613. The ruling of the court to question 352, Record, page 73 was not error. Hines v. Sweeney, supra; 4 Blashfield's Cyc. of Auto Law, p. 534. The verdict was not the result of passion and prejudice and is not excessive. Northwest States Utilities Co. v. Ashton, (Wyo.) 65 P.2d 235; Eagan v. O'Malley, 45 Wyo. 505; Chapman v. Ewing, 46 Wyo. 130. The question of excessiveness of damages in personal injury cases is annotated in 102 A. L. R. 1125. The judgment of the lower court should be affirmed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This cause arising in consequence of personal injuries, occasioned by a collision between two automobiles, was tried in the district court of Laramie County. A jury was called to determine the disputed questions of fact. Its verdict was returned in favor of the plaintiff, Grace L. Ries, against the defendant, Cheyenne Cab and Transfer Company, a corporation, a judgment was thereafter duly entered thereon by the court, and the unsuccessful litigant now has asked a review of the record made in the case by direct appeal. No questions arise upon the pleadings, the introduction of evidence, except in one instance to be hereinafter considered, or upon the instructions given for the guidance of the jury concerning the law applicable. The parties will be referred to as aligned in the trial court or by their respective names.

The facts material to be considered in this court are substantially as follows: On the morning of October 17, 1936, between 8:00 and 8:30 o'clock, the plaintiff, with her husband and their small son, proceeded in their automobile to a point a short distance east of the intersection of Twentieth Street and Carey Avenue, on the southerly side of Twentieth Street in the City of Cheyenne, Wyoming. The car was there stopped, her husband, who had been driving, left the vehicle, plaintiff took the driver's seat, and, with the child in the rear seat of the car, drove easterly along the street last mentioned to its intersection with Capitol Avenue, the first street on the east and which extends in a northerly and southerly direction. She traveled this distance, a comparatively short one, with the machine partly in low gear and partly in intermediate, at the rate of ten or twelve miles an hour, slowed the car somewhat by the application of brakes as she approached said intersection and looked in both directions up and down Capitol Avenue for north and south bound cars. Seeing no car "near enough," as she testified, that would interfere with her passage across the street, there being none from a quarter to a half a block away, with the auto still in intermediate gear and still moving at the speed mentioned above, she proceeded across the street without difficulty until her car had passed the north and south center line of Capitol Avenue.

Meanwhile, one C. R. Harrell, a sergeant in the service of the United States Army, had engaged a cab owned by the defendant and operated by its employee, one Abe Free, to take him from the Union Pacific Railroad Station in the city aforesaid to Fort Warren, the army post adjoining the western boundary of the municipality. This cab started north along Capitol Avenue, with Harrell as the only passenger in it occupying the back seat thereof. Harrell stated as a witness for the plaintiff that the street seemed to be pretty clear at that time in the morning; that the cab started out and attained a speed of not under thirty-five or over forty-five miles per hour; that two blocks from the railroad station the cab driver had to "hit his brakes," coming down to about fifteen or twenty miles per hour, in order to allow another car in the intersecting street at that point to pass from the left in front of him and proceed on up the avenue; that at this intersection the cab driver "was caught in the jam" and "he missed a collision;" that the cab then continued on up Capitol Avenue at its original rate of speed, and as it came up to the intersection of Twentieth Street and the Avenue mentioned the driver of the cab again "hit his brakes;" that this action either threw his car or he then turned to the right, the cab shot forward, and the collision with plaintiff's car took place; that this made Harrell look and he saw the other car to the left momentarily; that then his head was struck due to the force of the collision, and he became unconscious.

Skid marks made by automobile tires east of the north and south center line of Capitol Avenue and extending some two to five feet immediately back of the Ries car wheels as it stood after the accident, and, also tire skid marks extending some nine to fifteen feet along the pavement on Capitol...

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