Wells v. McKenzie

• Decision Date: 24 November 1936
• Docket Number: 1963
• Citation: 50 Wyo. 412,62 P.2d 305
• Parties: WELLS v. McKENZIE, ET AL
• Court: Wyoming Supreme Court

62 P.2d 305

50 Wyo. 412

WELLS v. McKENZIE, ET AL

No. 1963

Supreme Court of Wyoming

November 24, 1936

APPEAL from the District Court, Big Horn County; P. W. METZ, Judge.

Action by Ben Wells, as guardian and next friend of Mildred Wells, a minor, against Alec McKenzie and another. From an order granting defendant's motion for new trial after judgment had been rendered for plaintiff, plaintiff appeals.

Affirmed.

For the appellant there was a brief and the cause was argued orally by C. H. Harkins of Worland, Wyoming.

The trial court erred in granting defendants' motion for a new trial. Defendant was violating a statute at the time of the accident. Section 72-204, R. S. 1931; O'Malley v Egan, 43 Wyo. 233. The negligence of a parent is not imputed to a child. The failure of the defendant to turn to the right of the center of the road was contributory negligence. Huddy 5-6, page 301; Burzio v. Joplin, 171 P. 351; Hilstad v. City of Seattle, 271 P. 264; Frint v. Amato, 284 P. 183. When Ben Wells determined that Mrs. McKenzie was not going to turn to the right, he turned to the left and ran into the bank, chosing what he deemed the lesser danger, as no doubt it was. The circumstances as shown by the evidence indicate that the McKenzie car was not to the right of the center of the road in addition to this, the undisputed evidence shows between two and three feet of available space for driving at the right of the McKenzie car. There is no evidence showing negligence on the part of Ben Wells, unless his turning to the left and into the bank was negligence, and if it were, it would not be imputed to his minor child, in view of the fact that defendant failed to turn to the right of the center of the road, thereby causing the accident.

For the respondent, there was a brief and the cause was argued orally by G. W. Bremer of Worland and C. A. Zaring of Basin.

Defendant was confronted by an emergency. Johnson v. Prideaux (Wis.) 187 N.W. 207; Post v. Richardson, 273 P. 56; Eastburn v. U.S. Express Company, 225 P. 33; Kowlak v. Tensleep Merc. Co., 41 Wyo. 20; O'Malley v. Eagan, 43 Wyo. 233. In negligence cases, other than those arising between carrier and passenger, it is a rule that where plaintiff sets forth allegations of negligence, followed by a statement of specific acts of negligence, he will be confined in his proof to the acts specifically pleaded. Flaherty v. Ry. Company, (Montana) 135 A. S. R. 630; Wyoming Coal Mining Company v. Stanke, 22 Wyo. 110. If the negligence of the father, Ben Wells, was the sole proximate cause of the accident and the resulting injury to plaintiff, then the defendant could not be liable. Hagenah v. Bidwell, (Calif.) 189 P. 799; Brickey v. Herrin, (Colo.) 41 P.2d 298; Lemos v. Madden, 28 Wyo. 1; O'Malley v. Eagan, 43 Wyo. 233. There are three essential elements in actionable negligence: First, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and third, a consequent injury so connected with the failure to perform the duty that the failure is the proximate cause of the injury. Hartnett v. Store of Chicago, 265 Ill. 331; L.R.A. 1915C, 460. There is no evidence indicating that the proximate cause of the injury to plaintiff was due to any fault of defendant. White v. City of Casper, 35 Wyo. 371; Lemos v. Madden, 28 Wyo. 1; O'Malley v. Eagan, 43 Wyo. 233. Section 72-203, W. R. S. 1931 applied to the driver of the Chevrolet car. There was no cause of action established against defendant and plaintiff had the burden of proving negligence. 45 C. J. 1162, 1163; 45 C. J. 1168. The elements of actionable negligence are set forth at 45 C. J. 635. The order sustaining the motion for a new trial is sufficient. Kester v. Wagner, 22 Wyo. 512; Allen v. Lewis, 26 Wyo. 85; Elliott v. Sloan, 38 Wyo. 276. Upon the evidence and the law of the case, the district court should be directed to enter judgment in favor of the defendant and respondent, Lena McKenzie, dismissing the action. Brickey v. Herring, (Colo.) 41 P.2d 298; Bryant v. Cadle, 18 Wyo. 64; U. P. R. R. Co. v. P. Market Co., 27 Wyo. 501; Snowball v. Maney Bros. & Co., 39 Wyo. 84.

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

OPINION

BLUME, Justice.

On August 21, 1931, plaintiff, Ben Wells, an experienced driver, was driving down hill, westerly, on the Greybull-Granite Creek-Shell highway, about seven and a half miles distant from the village of Shell. The highway is a mountain road. Plaintiff drove a Chevrolet car, model 1928, about 5 1/2 feet wide "over-all." He had with him his wife and little daughter. On the north side of the road is a deep canyon, a thousand feet deep. On the south side is a high, rocky bank. At the time in question Mr. Wells, so he testified, was driving round a curve, with the right of his car about three feet from the edge of the canyon. He stated that he had his car in second, and had, sometime previously, applied his emergency brake to some extent, so as to slow up his car, and that he was, at the time in question, traveling at the rate of ten to fifteen miles per hour. About the time when he emerged from the curve, he espied Mrs. McKenzie, the defendant, who was driving up the hill, in a Buick automobile, model 1929, with an "over-all" width of 5 1/2 feet. Mrs. McKenzie had with her, as passengers, Mrs. Bush and the latter's son, about ten years of age. When Mr. Wells saw defendant's car, he was about 70 feet away; he drove about 30 to 40 feet further, then, noticing that he could not pass the other car, he swerved his own car to the left toward the rocky bank, his car climbing it to some extent and then turning over on the right, and in doing so, injuring the daughter of Mr. Wells, on whose behalf he is prosecuting this action. The road at the point of the accident was twelve feet wide, according to the testimony of Mr. Kay. It was a one-way road, so-called, with meeting points at various places along the road. Mr. Wells stated that defendant did not cause the horn of her car to be sounded, and did not turn to the right of the center of the road after seeing him. The defendant, an experienced driver, driving up hill, as stated, skirted close to the rocky bank, but inside of a small drain running along the bank. She testified that "my car practically touched the bank, that is the high bank or hill, and you couldn't go around it, without moving the door (when opened)." Mrs. Bush stated that defendant could, perhaps, have got two feet closer to the rocky bank by driving into the drain above mentioned. Defendant was driving in second gear, at the rate of about ten miles an hour, and when she saw plaintiff's car, she instantly, so she testified, stopped her own car. Mrs. Bush testified that defendant stopped quickly, and immediately upon seeing the danger of a collision, though not the very instant when the plaintiff's car was seen. Both the defendant and Mrs. Bush testified that the defendant could have done nothing more or better than she did; that defendant sounded the horn of her car before seeing the Chevrolet car; that Mr. Wells was coming down the hill at the rate of 25-30 miles per hour, and that he stated, after the accident, that he himself, and not defendant, was to blame. This statement was denied by plaintiff. Defendant further testified that, had she been driving down the hill, she could have stopped within ten feet.

The case was tried to the court without a jury. After the trial it entered judgment for plaintiff in the sum of $ 2000. Thereafter the defendant filed a motion for a new trial. Before it was ruled on, a supplemental motion for a new trial was filed...