Wilhelm v. Cukr

• Decision Date: 27 February 1951
• Docket Number: No. 2473,2473
• Citation: 68 Wyo. 1,227 P.2d 988
• Parties: WILHELM, v. CUKR.
• Court: Wyoming Supreme Court

Page 988

227 P.2d 988

68 Wyo. 1

WILHELM, v. CUKR.

No. 2473.

Supreme Court of Wyoming.

Feb. 27, 1951.

Rehearing Denied May 1, 1951.

G. R. McConnell, Laramie, Lorin Guild, Wheatland, for appellant.

Vincent Mulvaney, Clarence A. Swainson, Cheyenne, for respondent.

RINER, Justice.

This direct appeal proceeding brings a judgment of the District Court of Laramie County here for review. The action wherein this judgment was rendered arises out of an automobile collision resulting in the death of John Wilhelm plaintiff's intestate. The parties to the action, Leo Wilhelm who, as administrator of the estate of John Wilhelm, deceased, plaintiff below and now appellant began this litigation in the court aforesaid against Eugene H. Cukr as defendant, now the respondent, will be hereinafter usually referred to as designated in the trial court aforesaid. Dissatisfied with the action of the District Court in instructing a verdict for the defendant upon the conclusion of plaintiff's evidence only, and entering judgment thereon dismissing the action, the plaintiff appeals.

A brief survey of the pleadings of the parties will disclose with reasonable accuracy the nature of the controversy subsisting between them. Plaintiff's amended petition may be summarized as follows:

After stating in paragraph '1' his official position as administrator and his authorization to institute the action, paragraph '2' states in substance that on February 18th 1949 the defendant owned and used a Cadillac automobile for travel purposes and on said date was driving it on U.S. highway 87 about 3 miles north of Wheatland and about the hour of 12:15 p. m. moving in a northerly direction near where said highway intersects a county road.

Paragraph '3' alleges that John Wilhelm, plaintiff's intestate, owned a Ford automobile also used for travel and while he was with due care 'proceeding westerly on the county highway' at said intersection of said county road and U.S. highway 87, the defendant negligently drove his automobile 'at and in said intersection' with the proximate result of said negligence that he struck the Wilhelm car so that the driver, Wilhelm, was knocked to the ground and severe physical injuries were inflicted upon him from which he died on February 18, 1949.

Paragraph '4' sets forth the specific acts of negligence thus committed by the defendant which were (a) that the defendant in violation of law failed 'to keep said auto under control as provided by W.C.S.1945 § 60-501, and to slow down or stop the same' until it could safely approach the Wilhelm car, § 60-505, paragraphs 1 and 2, W.C.S.1945. (b) That defendant unlawfully drove his automobile in excess of the posted speed of 45 miles per hour on U. S. highway 87 on a curve in said highway contrary to W.C.S.1945, § 60-501(d) and the rules of the Wyoming Highway Department which prescribed the speed at which said curve could be travelled by all persons. (c) That said defendant in violation of § 60-501, W.C.S.1945 failed to keep his automobile on the right side of the highway but drove his motor vehicle on the left side of the road where he had no right to be and also at such a rate of speed and so negligently that he struck the Wilhelm car when it was properly on the right side of the road. (d) That defendant recklessly drove his automobile on highway 87 within an area where car speed was restricted to 45 miles per hour, at an excessive speed and in excess of 55 miles per hour, in violation of § 60-501(d), W.C.S.1945 and in violation of the posted speed at the point in said highway 'where said county road and highway 87 intersect each other.'

The remaining portions of the plaintiff's amended petition dealing with the matter of alleged damages is not germane to the questions arising on the present appeal and need not be reviewed at this time.

The defendant filed an amended answer which alleged substantially as follows:

He admits the allegations of paragraph '1' and '2' of plaintiff's amended petition and that John Wilhelm was the owner of a Ford automobile and 'was proceeding westerly on the county highway' at the intersection of said county road and highway 87 at the time alleged in plaintiff's amended petition, but denies the remaining allegations of fact set out in paragraph '3' thereof. The allegations of fact set out in paragraph '4' are also denied.

As a second defense defendant stated in paragraph '1' thereof that the injuries and death of John Wilhelm were due to and the sole proximate cause thereof was the negligence of said John Wilhelm in these particulars:

'(a) In not stopping his said automobile at said time and place at the entrance to said main highway No. 87 at the intersection of said cross road and in not yielding the right-of-way to the automobile being driven by defendant which was lawfully proceeding on said through highway;

'In not stopping at the entrance to said main highway from said side road in obedience to the stop sign erected by the Highway Department pursuant to § 60-527 Wyoming Compiled Statutes 1945 at the entrance to said highway, and in not yielding the right-of-way to the defendant;

'(b) In not stopping at the stop sign erected at the entrance and intersection to a through highway, in violation of sections 60-527 Wyoming Compiled Statutes 1945.'

As a third defense it was alleged that John Wilhelm was himself negligent as alleged in the second defense above and this negligence 'proximately contributed to the happening of said accident' and bars plaintiff's recovery for Wilhelm's injuries and any damages.

The amended answer sets forth also as a 4th defense substantially that by reason of John Wilhelm's negligence defendant was placed in and suddenly confronted by an imminent peril so that to avoid injury to himself and the other occupants of his car and John Wilhelm he turned his car abruptly to the left; that the defendant had no time to deliberate as to what was the best course to pursue to avoid said peril caused by plaintiff's intestate, but took the best course to avoid a head-on collision with plaintiff's intestate; that by reason of this emergency caused by John Wilhelm the defendant's automobile collided with that of the plaintiff's intestate without fault on the defendant's part.

Plaintiff filed a reply denying all of paragraph '1' of the second defense with its several sub-divisions as given above. As to defendant's alleged third defense plaintiff states that: 'The negligence of the defendant in the operation of his said automobile was the direct, proximate and sole cause of the impact and the death of John M. Wilhelm as heretofore set forth in plaintiff's petition.'

As to defendant's fourth defense plaintiff stated that: 'Any sudden or imminent peril to the defendant alleged in the fourth defense was caused by the defendant himself if any existed.'

As we have already stated the cause went to trial in the District Court with a jury in attendance and after plaintiff had submitted his evidence and had rested, the defendant without producing further evidence in the case in his behalf moved for a directed verdict: 'For the reason that the plaintiff has failed to prove any of the allegations of negligence in his amended-petition and that any verdict rendered by the jury would be based upon conjecture and speculation; and, for the further reason that plaintiff's evidence discloses that the plaintiff's intestate was guilty of contributory negligence, barring a recovery.'

Thereupon the trial judge said: 'There appears to be a failure to observe the stop sign; that the evidence does not indicate that the plaintiff observed the stop sign which was along the side road as it approached the highway, and that in the absence of such showing, there is failure here on the part of the plaintiff to establish what he was required to show; that under the circumstances there was contributory negligence on the part of the plaintiff for want of due care on his part.'

This court has had occasion in the past to indicate how plaintiff's evidence must be regarded on review here under the circumstances this record presents. It is proper that we should recall what has in such cases been heretofore ruled.

In Collins v. Anderson, 37 Wyo. 275, 278, 260 P. 1089, 1090 this court said: 'In considering whether the trial court was justified in taking the case from the jury, we must accept as true the evidence in favor of the plaintiff, together with such inferences as might reasonably be drawn therefrom, and then determine whether such evidence and such inferences would support a verdict in the plaintiff's favor, if such a one were returned by the jury. We are not concerned with conflicts in the evidence. That is for the jury. Our only inquiry is whether the evidence in the plaintiff's favor, if believed by the jury, would, with reasonable inferences therefrom, warrant a verdict in her favor.'

Of similar purport are our cases: Boyle v. Mountford, 39 Wyo. 141, 147, 270 P. 537; Hester v. Coliseum Motor Co., 41 Wyo. 345, 352, 285 P. 781; Merback v. Blanchard, 56 Wyo. 152, 161, 105 P.2d 272.

As additional authorities dealing with the same point and citing many other authorities are: 64 C.J. 432, 433, § 426; 3 Am.Jur. 440, 441 § 886.

In connection with these decisions it will be of assistance herein to review the following:

Quoting from an earlier case from the same jurisdiction the Supreme Court of Washington in Morris v. Chicago M., St. P. & P. R. Co., 1 Wash.2d 587, 97 P.2d 119, 126, 127, 100 P.2d 19, said: 'In Smith v. Inland Empire R. Co., 114 Wash. 441, 195 P. 236, 237, the following rule is announced:

"Since no one saw the deceased at the time he approached the crossing, and since there was no evidence to show what he did at or before he attempted to cross the railway track, it must be presumed that he used due care."

Concerning this rule the court remarked: 'We think the rule is based primarily upon the fact that there is no evidence to...