Pierce v. Bean

Full title: PIERCE v. BEAN

Court: Supreme Court of Wyoming

Date published: Jul 29, 1941

115 P.2d 660 (Wyo. 1941)

115 P.2d 660

Opinion

No. 2161

July 29, 1941

NEGLIGENCE — AUTOMOBILES — EXERCISE OF REASONABLE CARE — PROXIMATE CAUSE OF COLLISION.

1. The fact that motorist was negligent in failing to see a truck approaching from his right as motorist drove automobile onto highway from side road, did not preclude a finding that truck driver also was negligent in failing to operate truck at a reasonable speed with due regard for other traffic and the use and condition of the road, as required by statute (Rev. St. 1931, § 72-203). 2. Fact that truck driver was by statute given right of way over automobile entering highway from side road on his left did not excuse truck driver's negligence, if any, in failing to operate truck with due care and at a reasonable speed having due regard for other traffic and intended use and condition of the road, as required by statute (Rev. St. 1931, §§ 72-203, 72-204). 3. Evidence that a truck, which with its load weighed 8,000 pounds was being operated without chains on an icy highway down a 7 per cent. grade at a speed of 25 miles per hour when it collided with automobile entering highway from side road on truck driver's left, warranted finding that a proximate cause of collision was truck driver's negligence in driving at a speed not reasonable and proper under the conditions, thereby precluding recovery by truck driver notwithstanding negligence of driver of other automobile (Rev. St. 1931, §§ 72-203, 72-204).

APPEAL from the District Court, Albany County; V.J. TIDBALL, Judge.

For the appellant the cause was submitted on the briefs of Tom H. Barratt of Laramie.

The judgment against appellant is not supported by substantial evidence. Peterson v. Johnson (Wyo.) 28 P.2d 487; Wilde v. Amoretti Lodge Co. (Wyo.) 41 P.2d 508; Fieldhouse v. Leisberg, 15 Wyo. 207; C.B. Q. Ry. Co. v. Cook, 18 Wyo. 43, Sec. 72-204 R.S.

Cars moving on oil-improved highways attain a higher rate of speed than would be safe on country trails. All traffic elements, of course, should be considered. The purpose of the statute is to protect the traveling public against collisions at points where unmarked roads running at an angle to highways join. We doubt whether this court will establish a precedent permitting a driver emerging from an unmarked country road to enter a highway without warning from the right. The appellant had the right to assume that the respondent approaching from the left would yield the right of way as required by law, and his failure to do so constituted negligence. Sherman v. Hall (N.Y.) 158 N.E. 16; Huddy Ency. of Auto. Law, Vol. 3, pp. 256, 280; Shillman x. Newman (Wash.) 162 P. 997; Knox v. Abrams (Ore.) 286 P. 517; Vickerson v. Auto Sales Co. (Calif.) 221 P. 392; Cooper v. Vucinish, 201 P. 351; Chiswell v. Nichols, 137 Md. 291; Elgin Dairy Co. v. Shepherd, 183 Ind. 466; Brown v. Chambers, 65 Pa. S.Ct. 373; Judd v. Webster (Calif.) 195 P. 929; McCafferey v. Auto Liability Co., 186 N.W. 585; Simmon v. Lit Bros., 107 A. 635; Hussa v. Kranich, 199 N.Y. Supp. 781; Partridge v. Eberstein, 225 Ill. App. 209; Lenartz v. Funk, 224 Ill. App.? 180; Zapf v. Kutten, 229 Ill. App. 406; Shirley v. Larkin Co., 239 N.Y. 94; Shepherdson v. Storrs, 114 Kan. 148; Dodge v. Salinger, 126 Wn. 237; Rowe v. Kurtz (Iowa) 210 N.W. 550; Davis v. American Ice Co., 285 Pa. 177; Aikens v. Kingston, 53 Ont. L. Rep. 41; Carlson v. Meusberger, 200 Iowa 65; Blashfield Ency. of Auto. Law, page 496 et seq.; Hester v. Coliseum Motor Co. (Wyo.) 286 P. 781; Worthy v. Pate (La.) 122 So. 727; Callahan v. Bridges (Me.) 157 A. 423; Ries v. Cheyenne Cab Trans. Co., 53 Wyo. 104. It was the duty of the respondent to see appellant's truck approaching the intersection. Chapman v. Ewing, 46 Wyo. 130; Ries v. Cheyenne Cab. Trans. Co., 53 Wyo. 104; Kemmish v. McCoid, 193 Iowa 935; Arno v. Delta Hardware Co., 231 Mich. 488; Masonholder v. O'Toole (Iowa) 210 N.W. 778; Peterson v. Sims, 189 Wis. 517; Dansky v. Kotimake, 124 Me. 72; Carlson v. Meusberger, 200 Iowa 65; Balvoll v. Pinnow, 189 Wis. 535; Fisher v. Johnson, 238 Ill. App. 25; St. Mary's Academy v. Hewhagen, 77 Colo. 471; Ramp v. Osborne, 115 Or. 672. Under the evidence the respondent had the last chance to avoid the accident. Annotation 92 A.L.R. 47; 119 A.L.R. 1041; Reinecker v. Lampman, Wyo. case No. 2104. The appellant could not have foreseen that respondent would suddenly block his passage. Chitwood v. King (La.) 155 So. 456; O'Malley v. Eagan, 43 Wyo. 233. We believe the court should review the evidence in view of the ruling of Huber v. Bank, 32 Wyo. 357. Christensen v. McCann, 41 Wyo. 101. The only negligence shown by the evidence is that of the respondent.

For the respondent the cause was submitted on the brief of G.R. McConnell of Laramie.

There was a clear conflict in the evidence and the judgment thereon will not be disturbed on appeal. Marshall v. Rugg, 6 Wyo. 270; Worland v. Davis, 223 P. 227; Montgomery v. Empey, 253 P. 17. The case of Peterson v. Johnson (Wyo.) 28 P. 487 sustains respondent. Wilde v. Amoretti Lodge Co. (Wyo.) 41 P. 508. This court held that a judgment on conflicting evidence would not be disturbed unless clearly erroneous or against the great weight of evidence. See C.B. Q. Ry. Co. v. Cook, 18 Wyo. 43; Collins v. Anderson (Wyo.) 260 P. 689; O'Malley v. Eagan (Wyo.) 2 P.2d 1063. A skidding automobile without chains is without proper equipment. Cross v. Burnside, 199 P. 780; Burns v. Eminger, 261 P. 613. A driver entering a highway is not obliged to extend his vision beyond a point where vehicles moving in a lawful manner would threaten his safety. Blashfield Ency. Auto. Law, Vol. 2, Sec. 1163; Wioson v. Huhn, 130 A. 468. Sec. 72-204 R.S. does not give a person approaching from the right the privilege of entering a highway without consideration. It should be read in connection with Sec. 72-203 R.S., and Laws 1939, page 224. Ries v. Cheyenne Cab Co. (Wyo.) 79 P.2d 468; Blashfield, Sec. 653 and 658; Seney v. Pickwick Stages, 255 P. 279; Hester v. Coliseum Motor Co. (Wyo.) 17 P. 781.

KIMBALL, Justice.

Plaintiff's Ford truck and defendant's Buick coupe were damaged by collision of the two vehicles November 6, 1938, on the Lincoln highway about 3 miles north of Rock River in Albany county. Plaintiff, in his petition, alleged that the collision was caused by negligence of defendant, and defendant in a cross-petition alleged that it was caused by negligence of plaintiff. After a trial without a jury, the judge decided that "the accident in question was proximately caused by the negligence of both plaintiff and defendant," and rendered judgment against plaintiff on the petition and against defendant on the cross-petition. The plaintiff appeals, and contends that the decision that he was negligent is not sustained by sufficient evidence.

Statutes in effect at the time of the accident contained these provisions:

"No person shall operate a motor vehicle on any public highway outside of a city or town at a speed greater than is reasonable and proper having due regard for other traffic and the intended use and condition of the road, * * *. Every person shall at all times have the motor vehicle operated by him under absolute control. Upon approaching an intersection of highways, * * * or a steep descent, or another vehicle * * *, the person operating the motor vehicle shall * * * reduce the speed of such motor vehicle to a reasonable rate, and shall not exceed such speed until entirely past such intersection, * * * descent [or other] vehicle * * *." R.S. 1931, § 72-203. "The driver of any vehicle, upon approaching any intersection of public highway, shall be required to protect and give right of way to all vehicles on his right." R.S. 1931, § 72-204.

At the place where the collision occurred, the Lincoln highway, running north and south, makes junction at right angles with a side road running east from the highway to a ranch house. Plaintiff, driving his truck, was on his way from Parco, Wyoming, to Denver, Colorado, and as he approached the junction was traveling south on the highway. Defendant, driving his coupe, was returning to the highway after a visit to the ranch house, and was traveling west on the side road. Twenty feet east of the oiled part of the highway, the side road runs through a gate in a fence. Defendant testified that he stopped 6 or 7 feet east of the gate, opened the gate, returned to his car, looked up and down the highway, saw no approaching cars, and then in low gear at a speed of 5 miles an hour drove on to the highway intending to stop for the purpose of closing the gate, after he had turned left so as to face south on the west side of the highway. Before he had completed the intended turn, the right front wheel and fender of the coupe came in contact with some part of the truck as plaintiff, approaching from the north and unable to stop, tried to pass on the right side of the coupe. By the impact the coupe was forced and turned to the left until it came to rest with its front wheels over the east shoulder of the road. The truck went off the road on the west side and upset in the barrow pit.

Much of plaintiff's brief is taken up by discussion of defendant's negligence, though the finding on that point was against defendant who does not appeal. Defendant admitted that after he started to drive through the gate to the highway (a distance of about 27 feet) he did not again look along the highway for other vehicles that might be approaching the junction. From the fact that he was negligent in failing to see the plaintiff's truck, it does not follow that the trial judge was not justified in finding that plaintiff also was negligent in failing to operate his truck at a speed that was "reasonable and proper having due regard for other traffic and the intended use and condition of the road." Sec. 72-203, supra. And plaintiff's failure to drive with due care would not be excused on the ground that he had the right of way under the quoted provision of section 72-204, supra. In Garner v. Brown, 31 Wyo. 77, 81-82, 223 P. 217, 218, we referred to this provision of the statute, and said, among other things, that "though one is given the right of way by the law aforesaid, it remains his duty to exercise reasonable care to avoid collisions with other vehicles." See, also, Christensen v. McCann, 41 Wyo. 101, 107-108, 282 P. 1061, 1063; Ries v. Cheyenne Cab Transfer Co., 53 Wyo. 104, 117, 79 P.2d 468, 472-473.

The accident occurred about noon on a clear, cold, windy day. The Lincoln highway, which is oil-surfaced for the width of 21 feet, was at the time covered with a sheet of ice and, as stated by plaintiff and other witnesses, was "slippery and very dangerous." A State Highway Patrolman testified, without objection, that a speed greater than twenty miles an hour was not safe. From a point about 250 feet north of the junction, the highway toward the junction ran down a hill of seven per cent grade. Plaintiff's truck with its load weighed 8000 pounds, and there were no chains on the wheels. Plaintiff testified that when he was about 1000 feet from the junction he saw the coupe on the side road, and when about 150 feet from the junction saw that the coupe was being driven on to the highway. He testified also that when he saw the coupe enter the highway at the junction, "the only thing I could do was to take the right of the road and try to avoid a crash. * * * There was no opportunity to stop in that distance whatsoever under the conditions of the road * * *. If I had applied the brakes, I would have skidded straight ahead into the man * * *. It would have been a matter of impossibility for me to have controlled the front wheels of my truck in any direction." Estimates of the speed at which plaintiff was driving differed. Plaintiff himself testified first that his speed was "approximately twenty miles an hour." Later he said it was "between twenty and thirty miles an hour," and still later that it at no time was over twenty-five miles an hour, "for the simple reason that it was impossible." A witness who was driving another truck in sight of and following plaintiff, testified that plaintiff was driving at the rate of 25 miles an hour. It is not necessary to refer to other evidence on this point. We think the trial judge may reasonably have believed that plaintiff was traveling at a speed of at least twenty-five miles an hour. The travel surface was ice, the grade descending, the vehicle without chains, the driver unable to stop or slow down when he saw the coupe at the junction ahead. We hold that the trial judge was justified in deciding that a proximate cause of the collision was plaintiff's negligence in driving at a speed that was not reasonable and proper under the conditions.

The judgment will be affirmed.

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