Severin v. Hayes, 3058

• Decision Date: 03 July 1962
• Docket Number: No. 3058,3058
• Citation: 372 P.2d 1017
• Parties: Victor SEVERIN, Appellant (Defendant below), v. Alice HAYES, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1017

372 P.2d 1017

Victor SEVERIN, Appellant (Defendant below), v. Alice HAYES, Appellee (Plaintiff below).

No. 3058.

Supreme Court of Wyoming.

July 3, 1962.

Edward S. Halsey, Newcastle, Halsey, Whitley, Hollaway & Liamos, Newcastle, on the brief, for appellant.

George A. Bangs of Bangs, McCullen, Butler & Foye, Rapid City, S. D., Beatrice Raymond, Newcastle, and H. F. Fellows and Joseph Butler, Rapid City, S. D., for appellee.

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

Mr. Chief Justice BLUME delivered the opinion of the court.

In this action the plaintiff Alice Hayes sued the defendant Victor Severin on account of damages sustained by her in an automobile accident near Newcastle, Wyoming, the automobile being driven by the defendant Severin. Plaintiff alleged that about April 30, 1959, she suffered personal injuries and physical and mental pain and suffering and loss of time, all to her damage in the sum of $75,800, and alleged that the automobile accident was caused because the defendant operated his automobile in a wanton and grossly negligent manner. The answer denied any negligence on his part, and alleged that the plaintiff was a guest while he was driving the automobile and, accordingly, he was not liable to the plaintiff under the provisions of § 31-233, W.S.1957, which provides that a guest is not entitled to recover by reason of an accident in an automobile in which a person is a guest, 'unless such accident shall have been caused by the gross negligence or wilful and wanton mis-conduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton mis-conduct contributed to the injury, death or loss for which the action is brought.'

The plaintiff Hayes herein suffered two compound fractures in her leg, a fractured jaw, hip injuries and cuts and bruises. After the accident she was taken to a hospital in Rapid City, South Dakota, where she stayed until June 23, 1959. She went back to the hospital several times thereafter, the last time apparently in December, 1960. The operations upon her apparently were reasonably successful, but she still labored under disabilities at the time of the trial of this case. She incurred expenses in favor of Dr. H. L. Ahrlin in the sum of $1,180 and an indebtedness to the hospital in the sum of $1,954.27. The case was tried to the court without a jury, and after the end of the trial the court found generally in favor of the plaintiff and against the defendant in the amount of $9,134.27. From this judgment the defendant Severin has appealed to this court.

The facts in the case are comparatively simple. On April 29, 1959, about 9:30 p. m., she met the appellant and one Ecklund at the so-called Corner Bar at Newcastle, Wyoming. She had a Tom Collins and appellant Severin and Ecklund had some beer. About eleven o'clock that night, Severin and Ecklund decided to go to the Mountain Inn, a roadhouse about 12 to 13 miles west of Newcastle, Wyoming, and situated in South Dakota, and took Alice Hayes with them. About four miles east of Newcastle, there was a new bridge under construction along the regular Highway 16, and a detour was provided around the construction to the south of the road. There were signs indicating the detour. East of the detour at the state line there was a sign informing west-bound traffic of construction ahead and 350 feet east of the detour there were detour signs. At the detour there was a plank barricade with reflectors and a detour sign at a place across the road about 10 to 15 feet behind, and west of this barricade there was a large pile of gravel. The three persons above mentioned went to the Mountain Inn in appellant's automobile, a 1954 sedan, which appellant was driving. The speedometer was entirely out of repair. However, it does not appear that the appellant drove at an excessive speed going to the Mountain Inn. When they arrived at the Mountain Inn the appellee and appellant danced several times, and after a few minutes appellee and appellant left the inn and traveled on a road toward Custer, South Dakota, but they came back some 45 minutes later, and told Ecklund they were ready to drive back. Soon thereafter they started back toward Newcastle, Wyoming. In driving west, as already stated, there was a sign at the state line which is some distance east of the detour above mentioned showing construction ahead. Then there was a caution sign some 300 feet east of the detour, but the appellant disregarded these signs and instead of taking the detour crashed into the plank barricade, and his car stopped in the pile of gravel west of the detour. A highway patrolman was called and he arrived soon after the accident. He testified that Severin had had a little too much to drink to be driving a motor vehicle; his eyes were blurry, his talk was a little bit slurred, and there was a strong odor of liquor on his breath and also in and around the car. He arrested the appellant and took him to Newcastle. The appellant was charged with driving a car under the influence of intoxicating liquor and also for reckless driving, to both of which charges the defendant pleaded guilty.

Defendant himself testified that he pleaded guilty to reckless driving and driving while intoxicated because he had no money with which to defend the accusations and because if he stayed to defend the action he would lose his job and he did not want to do that. In that connection the testimony of appellant shows as follows:

'A. Well, I certainly had to get back to work.

'Q Is that your only explanation of entering a plea of guilty to something you weren't guilty of? A I don't know how to answer that.

'Q You were guilty weren't you of the charge? A I plead guilty. * * *

'Q You were guilty weren't you? You were guilty, were you not? A I plead guilty. * * *

'Q Answer my question, you were guilty, were you not? A Yes, sir.'

The plaintiff testified that in driving toward the place of the accident, the appellant drove at an excessive speed. She asked him several times not to drive so fast, that she would prefer that it would take all night getting back to Newcastle rather than to have some accident happen. When she asked the appellant to drive more slowly he complied for a little time but soon thereafter he...