Wallis v. Nauman

• Decision Date: 27 March 1945
• Docket Number: 2301
• Citation: 157 P.2d 285,61 Wyo. 231
• Parties: DALE WALLIS, Plaintiff and Respondent, v. MARY NAUMAN, Defendant and Appellant
• Court: Wyoming Supreme Court

157 P.2d 285

61 Wyo. 231

DALE WALLIS, Plaintiff and Respondent, v. MARY NAUMAN, Defendant and Appellant

No. 2301

Supreme Court of Wyoming

March 27, 1945

APPEAL from District Court, Converse County; C. D. MURANE, Judge.

Action by Dale Wallis against Mary Nauman to recover for damage to plaintiff's automobile in collision with automobile driven by defendant. From a judgment in favor of plaintiff defendant appeals.

Judgment Affirmed.

For the plaintiff and respondent the cause was submitted on the brief of Joseph Garst and R. C. Maurer, both of Douglas, Wyoming and oral argument by Mr. Garst.

POINTS OF COUNSEL FOR APPELLANT

It is a matter of common knowledge of which the court takes judicial notice that the sudden and unexpected skidding of an automobile is one of the natural hazards of driving cars on icy roads and may happen to the best of operators; that the viatic vagrancies of automobiles when skidding on icy roads are as well known to automobile drivers as are those of cows. L'Ecuyer v. Farnsworth, (Vt.) 170 A. 677.

Burden of proving negligence pleaded by him, was upon the plaintiff. 22 R. C. L. 1201; 42 C. J. 1203.

It was the duty of the plaintiff to prove that the alleged negligence of the defendant was the proximate cause of the accident. 42 C. J. 1203.

The mere fact of injury or damage by collision is not a sufficient basis for presumption that defendant was negligent. The burden upon the plaintiff to show the fact of the occurrence and the details thereof, and that it resulted from the causes contended for by the plaintiff where it might have resulted from several causes. 42 C. J. 1203.

To establish negligence there should be either direct proof of the facts constituting such negligence or proof of facts from which the negligence may be reasonably presumed. Its existence may not rest on mere conjecture. 20 R. C. L. 181.

Where the evidence shows that damages may have resulted from one of several causes but only one of the causes can be attributed to defendant's negligence the plaintiff must fail. Owl Drug Co. v. Crandall, 52 Ariz. 322, 80 P. 2d 952.

Casual connection between negligence and loss must be established by proof beyond point of conjecture. Erickson v Webber, 58 S.D. 446, 237 N.W. 558.

The mere skidding of an automobile does not, alone and unexplained, furnish evidence of the negligent operation of the car. Osborne v. Charbneau, 148 Wash. 359, 12 A L. R. 665.

The sudden emergency rule cannot be invoked to excuse the plaintiff in proceeding onward into the path of the skidding car if there were ample time and space to avoid the accident. 42 C. J. 892; Rhoades v. Firestone Tire Co., 51 Cal. A. 569, 197 P. 392; Tirschley v. Lambert, 70 Wash. 72, 126 P. 80.

It was the duty of the plaintiff in approaching the crest of the hill to be on the right side of the highway. Wyo. S. L. 1939, Ch. 126, Sec. 31; Bloom v. Bailey, 692 Pa. 348, 57 A. L. R. 585; State v. Witt, (Ky.) 221 S.W. 217; Greenwood v. Anderson, 143 Wash. 44, 254 P. 452; Anno. 57 A. L. R. 595.

It was his duty to have his car equipped with 2 lighted front lamps. Wyo. S. L. 1933, Ch. 71, Sec. 1.

Failure to carry lights as required by statute which contributes to cause an accident will bar recovery of damages. Annos. 14 A. L. R. 794; 113 A. L. R. 1261; 40 A. L. R. 1243.

It is negligence per se to drive an automobile along a public highway without displaying lights as provided by law. Sheppard v. Johnson, 11 Ga.App. 280, 75 S.E. 348; Fisher v. O'Brien, 99 Kan. 621, 162 P. 317; Page v. Neiland, 40 Ohio App. 141, 178 N.E. 710; Millspaugh v. Alert Trans. Co., 145 Wash. 111, 259 P. 22; Wetherley v. Bangor & A. R. Co., 131 Me. 4, 158 A. 362.

Plaintiff was under duty to drive his car at a speed that was reasonable having regard to the condition of the traffic, the road, and the weather. He also had the duty to avoid the collision of the cars by the exercise of ordinary care and caution. 2 R. C. L. 1186; Christensen v. McCann, (Wyo.) 282 P. 1061; Garner v. Brown, 31 Wyo. 77; O'Mally v. Eagan, et al., 43 Wyo. 233, 2 P.2d 1063; Dohm v. Cardoza, 195 Minn. 193, 206 N.W. 377.

For the defendant and appellant the cause was submitted on the brief and also oral argument of T. C. Daniels of Douglas, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

While mere skidding of an automobile is not necessarily evidence of negligence, it is a circumstance which may be taken into consideration with all of the facts and circumstances of the case in determining whether the driver of the automobile was negligent. Cook v. Rafferty, 93 P. (2) 376.

Negligence is a failure to act as a reasonably prudent person, or acting as a reasonably prudent person would not act. Knoff v. Pepper, (Mont.) 239 P. 1037.

One is liable for failure to exercise reasonable care to prevent injury which would probably result from the lack of such care. Lisle v. Anderson, (Okla.) 159 P. 278.

Before sudden emergency rule applies, it must be clear that the emergency existed through no negligence of the person in peril, and that resultant injury could not have been prevented after peril had passed. Henderson v. Land, 42 Wyo. 369.

Question of negligence causing collision on highway is one for the jury. Offerdahl v. Motor Transit Co., 252 P. 773.

The trial court having passed upon the facts, questions involving the credibility of witnesses, or a mere preponderance of the evidence, will not be reviewed by this (Supreme) Court. Wyman v. Quayle, 9 Wyo. 326.

The Supreme Court will not interfere with a verdict of fact unless it be shown that there was a misconception of the facts as given, or a palpable intention to commit a great wrong. Martin v. Union Pacific Ry. Co., 1 Wyo. 143.

An appellate court will not reverse simply because upon the evidence it would have arrived at a different conclusion and will only interfere when the findings are so clearly against the weight of evidence that no mind of fair intelligence, faithfully exercised, can be reasonably supposed to have arrived at the result complained of. 1 Wyo. 396; 2 Wyo. 113; 2 Wyo. 118.

A verdict on conflicting evidence will not be disturbed on appeal where there is competent evidence reasonably tending to sustain it. I Wyo. 17; 1 Wyo. 121.

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

OPINION

RINER, Justice.

This cause is here by direct appeal from a judgment of the District Court of Converse County, in favor of Dale Wallis, plaintiff below, and respondent here. The litigation arose in consequence of a collision between two automobiles, one driven by Wallis and the other by Mary Nauman now the appellant and heretofore the defendant in the District Court. Fortunately no person was injured as a consequence of the accident but the Wallis car suffered considerable damage and he brought an action in the Court aforesaid to recover therefor on account of the defendant's alleged negligence in operating her car.

The accident appears to have occurred sometime between 5:30 and 6 o'clock in the late afternoon of December 8, 1943, on U.S. Highway 385, at a point about three miles north of the town of Douglas, Wyoming, this road at that place running approximately north and south. Plaintiff was driving northerly and away from the town aforesaid while the defendant was coming southerly to her home in that place, she being a school teacher and returning from her school work that day, the school being located some 21 miles from town. She had driven about 9 miles on the highway before reaching the point where the accident happened.

Plaintiff's petition charged as negligence on the part of the defendant that she was driving on the highway "at a rate of speed greater than was reasonable and proper having due regard for other traffic on said highway and the use and condition of the road" and also that at the place where the two cars met "there is sufficient room for two meeting cars to pass but defendant did not have the car which she was driving under control and as a direct and proximate result defendant drove into Plaintiff's lane of traffic and into Plaintiff's automobile while plaintiff was exercising due care for his own safety and the safety of his automobile."

Defendant's answer was in substance a general denial and also submitted a defense of alleged contributory negligence on plaintiff's part in that he "at the time of the accident mentioned in the Plaintiff's petition, although it was then after dusk, was driving with only one head light illuminated and, although approaching the summit of an incline in the highway beyond which his view was obstructed, was driving in the center of the highway and not entirely upon his own side, as required by law, and was driving at a rate of speed in excess of what was reasonable and proper, having regard to the icy and slippery condition of the road." Plaintiff's reply put in issue "every allegation of new matter alleged in said answer."

The cause was tried to the Court without a jury with the result stated above. There was embodied in the judgment a general finding for the plaintiff and against the defendant.

Concerning the effect to be given such a finding this Court has heretofore said in Hinton v. Saul, 37 Wyo. 78, 259 P. 185, that: "And in causes tried to a court, a general finding is one of every special thing necessary to be found to sustain the judgment." Citing a number of Oklahoma decisions.

Quite in line with this statement of the law is the case of Knaggs v. Mastin, 9 Kan. 532, where in an opinion receiving the assent of Mr. Justice Brewer this was said "Where facts are established by a general finding of a court, it must always be presumed that all the controverted facts are established in favor of the party for whom the court finds, and against the party...