Scott v. Elwood, 2787

• Decision Date: 07 November 1957
• Docket Number: No. 2787,2787
• Citation: 317 P.2d 513,77 Wyo. 428
• Parties: J. E. SCOTT, Plaintiff and Appellant, v. Byrd E. ELWOOD, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 513

317 P.2d 513

77 Wyo. 428

J. E. SCOTT, Plaintiff and Appellant, v. Byrd E. ELWOOD, Defendant and Respondent.

No. 2787.

Supreme Court of Wyoming.

Nov. 7, 1957.

Allen H. Stewart, Casper, for appellant.

Houston G. Williams, Casper, for respondent.

Heard before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This action arose from an automobile accident occurring on East Twelfth Street in Casper, Wyoming, February 19, 1955, between the cars driven by plaintiff, J. E. Scott, and defendant, Byrd E. Elwood. Both cars were damaged; and plaintiff, claiming defendant's negligence, brought suit for $651. Defendant filed a cross-petition for $199. The case was tried to the court without a jury, and in the resulting judgment there was a finding that the defendant Elwood was negligent in causing the accident and that the negligence of plaintiff Scott contributed to the accident. It was accordingly decreed that both the petition and the cross-petition be dismissed, with each party to bear his own costs.

From this judgment plaintiff has appealed, asserting as error that the 'judgment is not sustained by sufficient evidence * * * is contrary to the evidence * * * and * * * contrary to law.'

The burden of plaintiff's appeal is that there was no real conflict in the evidence. He recognizes the rule that an appellate court will not reverse a judgment of a trial court if the only alleged error relates to a finding based upon evidence in which there is a substantial conflict. However, he cites Wilde v. Amoretti Lodge Co., 47 Wyo. 505, 41 P.2d 508; Desmond v. Snyder, 62 Wyo. 478, 174 P.2d 139; Montgomery Ward & Co. v. Arbogast, 53 Wyo. 275, 81 P.2d 885; Goldberg v. Miller, 54 Wyo. 485, 93 P.2d 947, 96 P.2d 570, all of which cases, in enunciating a version of the rule, emphasize the exception that such conflict must be substantial, must present more than a mere conflict of words, and must be a fair and reasonable ground for a difference in opinion. This view of the law is not controverted by defendant who in response merely calls attention to the holding of Hawkey v. Williams, 73 Wyo. 463, 281 P.2d 447, that where facts are established by a general finding of court it must always be presumed that all controverted facts are established in favor of the party for whom the court finds. Accordingly, whether or not there was a substantial and real conflict in the evidence in the present case can be determined only by an analysis of the evidence in the light of the applicable law.

A review of the record shows the following testimony of various witnesses:

Scott said he left his office in his automobile February 19 about 11 a.m., emerged from an alley onto Twelfth Street, traveling in a westerly direction, and at that time saw defendant's automobile headed westerly on the same street; defendant's car had started to back and he thought it had stopped but when he got a little closer the defendant backed up again; plaintiff pulled over to the side of the road as far as he could, approximately with his left wheel in the borrow pit, and honked but defendant ran right back into him; the cars after the accident were 'pretty much together'; the point of impact was 50 or 60 feet from the intersection of Wisconsin and Twelfth Streets; the defendant thereafter admitted that it was his fault, said that he couldn't see plaintiff until after plaintiff had honked, said he was sorry and apologized in the presence of another witness, Blanche Sawdy; there has been a light skiff of snow but plaintiff did not notice the streets being icy or slick.

Young (witness called by plaintiff) said he was an officer of the Casper Police Department; he made an investigation of the accident; there was 'hard, packed snow' and the streets were 'snowy and icy'; defendant told him he was backing and didn't see plaintiff as plaintiff went to go around him (later he said he didn't remember whether the defendant said he had been backing or was backing at the time of the collision); there was an incline of the street at the point of impact, the street sloping to the west.

Elwood said he had been going west on Twelfth Street between Beverly and Wisconsin; he stopped and looked around through the back window and saw nobody coming and began to back east; after he had backed approximately a car's length, he looked back through the rear window and saw the plaintiff coming about a half a block away on defendant's side, the righthand lane; he stepped on the brake but his vehicle did not come to a complete stop; he then glanced back for the third time through the rear window and saw plaintiff close to him on his side of the street; he hollered at his wife and the cars crashed; he was backing up 'pretty much of a grade'; his car was moved ahead about thirty feet by the impact, leaving plaintiff's car on the extreme left of the street and defendant's car on the extreme right; he made no statement to plaintiff that he had not seen him.

Mrs. Elwood (defendant's wife) said she was in the car at the time of the accident; defendant has looked back, then backed up, put on his brake and looked back again, put on his brake and then exclaimed immediately prior to the impact; defendant's car at the time 'could have been going a little bit, but it couldn't have been very much'; after the impact, the cars were so far apart that traffic going along the street passed between them.

Gilpin (defendant's brother-in-law) said he had gone to the scene of the accident shortly after the collision and had observed that one of the cars was on the north side and one on the south side of the street.

Blanche Sawdy (called in rebuttal) said she had been employed at the Veterans' Housing February 19 and remembered plaintiff and defendant coming to the house after the accident; she had heard a conversation between plaintiff and defendant; 'Mr. Elwood said that it was his fault, and he seemed sorry about it all.'

The only rule of motor vehicle law presented by plaintiff is a quotation in Chapman v. Ewing, 46 Wyo. 130, 24 P.2d 687, 688, 25 P.2d 1019, from 3-4 Huddy's Cyclopedia of Automobile Law, 9th ed., p. 219:

'* * * 'The driver of an automobile must exercise ordinary care in backing his machine, so as not to injure others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured.''

This quotation from Huddy is part of a general discussion of 'Lookout and Warning' in which the author in note 89 discusses Pyers v. Tiers, 89 N.J.L. 520, 99 A. 130, a case dealing with the relative rights of a motorcyclist who was going forward and an autoist who was going backward at the time of a collision. Regarding the case, the author says, 'The defendant's negligence and the plaintiff's contributory negligence are questions of fact to be decided by a jury.' This and other discussion on the subject make it clear that the questions of negligence and contributory negligence of both the backing driver and the forward-moving driver in an accident of this nature are questions of fact for the jury (or for the court in the case at bar where there is no jury). See 5 Am.Jur., Automobiles § 434; Annotation, 67...