Opinion
Jan. 30, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Wolvington, Dosh, DeMoulin, Anderson & Campbell, Winston W. Wolvington, Denver, for defendants-appellees.
Ashen & Fogel, George T. Ashen, Leland F. Branting, Denver, for plaintiffs-appellants.
Sheldon, Bayer, McLean & Glasman, Richard H. Glasman, Denver, for defendant-appellee the Rocky Mountain Conference of the Methodist Church.
DWYER, Judge.
This is an appeal by Walter F. Stephen and Richard A. Stephen from an adverse judgment entered on a jury verdict after the second trial of their action to recover damages for personal injuries.
During a severe snowstorm on the afternoon of January 31, 1965, a series of collisions occurred on U.S. Highway No. 287 in Albany County, Wyoming, about 17 miles south of Laramie, Wyoming. Four vehicles traveling in the same direction were involved. The highway was snowpacked in spots, and visibility was poor.
Plaintiff Walter F. Stephen, accompanied by his wife and children, was driving his automobile north toward Laramie. He was following a semi-trailer truck at a speedy varying between 10 and 20 m.p.h. Stephen stopped his vehicle when the storm became so severe that he could not see the lights of the truck. After plaintiff stopped, an automobile driven by David Bolton struck his car in the rear and forced it forward. The Bolton car stopped to the rear and to the left of the Stephen car. After this collision, Walter Stephen and his son, Richard, got out and went to the rear of their car to open the trunk to get a fuse. While Walter Stephen and Richard Stephen were standing behind their car, they were struck by a vehicle driven by defendant Donald Grooters. After the impact, Grooters backed his car onto the shoulder of the road. Shortly afterwards, the fourth vehicle involved, a truck, sideswiped the Grooters car, struck the Bolton car, and forced the Bolton car forward towards Walter Stephen who was lying injured in the roadway. Walter Stephen grabbed the front bumper of the Bolton car and was dragged some distance down the roadway.
In their action to recover damages for the injuries they suffered, plaintiffs Walter Stephen and Richard Stephen designated the operators of the three vehicles as defendants. They also designated defendant Grooters' employer, The Rocky Mountain Conference of the Methodist Church, as a defendant.
At the close of the evidence in the first trial, the court directed verdicts in favor of Bolton and in favor of the operator of the truck. The case was submitted to the jury, and a verdict in favor of the other defendants was returned. The court granted a new trial because of error in the instructions. The case was retried, and the jury returned a verdict for the defendants.
The claim of negligence asserted by the plaintiffs an the various defenses asserted by defendants were factual issues which were properly submitted to the jury. The only issues raised on appeal relate to the court's instructions to the jury.
Plaintiffs contend that the trial court erred in giving instructions 5 and 12, which instructed the jury separately on the defenses of contributory negligence and assumption of risk. They argue that this is improper under Wyoming law which the parties agree is controlling. This precise issue was raised in Askin v. Dalgarno, 293 F.2d 424, where the Court of Appeals of the Tenth Circuit, in construing Wyoming law, held that it was proper to instruct on both defenses. The court stated:
'Objection is made to the instruction on assumption of risk. We deem it unnecessary to comment upon the fine lines of distinction between assumption of risk and contributory negligence or the technical limitations imposed by some courts on the assertion of the defense of assumption of risk. We are bound by Wyoming law on the point, and the Wyoming Supreme Court has refused to adopt 'any one of the distinctions announced by other courts.' (Rocky Mountain Trucking Co. v. Taylor, 79 Wyo. 461, 335 P.2d 448). It is enough that the instructions fairly and properly covered the law of negligence, contributory negligence, and assumption of risk.'
The decision of the Circuit Court in Askin was cited with approval by the Wyoming Supreme Court in Ford Motor Co. v. Arguello, 382 P.2d 886. The trial court did not err in instructing on both defenses in separate instructions.
It was plaintiffs' theory that the defendant Grooters was negligent in failing to stop his vehicle before striking plaintiffs. With respect to defendant's duty to stop, the court instructed the jury as follows:
'You are instructed that it is the duty of the driver of an automobile to observe the highway ahead of him. That if, through conditions beyond his control, he cannot see an object upon the highway ahead of him, then he should reduce his speed and, If reasonable and prudent, come to a stop until he can observe the highway ahead of him.' (Emphasis added.)
Plaintiffs contend that the instruction should have contained the words 'if necessary' rather than the words 'if reasonable and prudent,' and they tendered an instruction to that effect. The instruction given by the court was proper. It was the defendant's duty to act as a reasonably prudent person under the circumstances shown by the evidence, and it was proper for the court to define defendant's duty to stop in terms which encompass the reasonable man test.
Plaintiffs also contend that the court was in error in instructing the jury as follows:
'INSTRUCTION NO. 11
'Section 31--148 of the Wyoming Statutes which were in full force and effect at the time of the accident in this case reads as follows:
"Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended to unattended, upon the paved or main travelled part of the highway when it is practicable t stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite such a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available for a distance of 200 feet in each direction upon such highway."
Plaintiffs contend that this instruction was an absolute prohibition against stopping upon a roadway, that the instruction is erroneous because it does not contain the statutory exception for disabled vehicles, and that it contains no exception for emergency situations. The language of the instruction fairly includes both exceptions. As stated in the instruction, stopping a vehicle upon the highway is prohibited only When it is practicable to stop off the highway. Under this instruction, the jury could determine from the evidence whether it was practicable to stop off the highway. This is a proper statement of the law.
In submitting the case to the jury, the court gave twenty-five instructions. Examination of these instructions indicates that the jury was fully and adequately instructed on the law applicable to the case.
Since the judgment in favor of the defendants is affirmed, the contention of The Rocky Mountain Conference of the Methodist Church that it was entitled to a directed verdict on the issue of its liability is moot.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.