Macy v. I.W. Billings

Full title: CHARLES S. MACY, Plaintiff and Respondent, vs. IRA W. BILLINGS, Defendant…

Court: Supreme Court of Wyoming

Date published: Nov 8, 1955

74 Wyo. 404 (Wyo. 1955)

289 P.2d 422

Opinion

No. 2695

November 8, 1955

Appeal from the District Court, Carbon County; Honorable Glenn Parker, Judge.

For the defendant and appellant the cause was submitted on the brief of C.L. Bates of Rawlins, Wyoming.

For the plaintiff and respondent the cause was submitted on the brief of William N. Brimmer of Rawlins, Wyoming.

POINTS OF COUNSEL FOR APPELLANT.

The driver of an automobile who fails to stop or turn aside to avoid an obstruction within the range of his lights is negligent as a matter of law. However, this is not a hard and fast rule that must be invariably applied, and it should not be applied when there is evidence from which the jury may find that there were disconcerting circumstances affecting the driver's actions at the time of the collision. Merback v. Blanchard, 56 Wyo. 152. An automobile driver who by the negligence of another and not by his own negligence is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice. 6 A.L.R. 680. Failure to keep to the right when, through no fault of the driver, an automobile skids on a slippery pavement and is thus thrown across the road, has been held to excuse failure to comply with the statute. Chase v. Tingdale, 127 Minn. 401, 149 N.W. 654. One who in a sudden emergency acts according to his best judgment or who because of want of time in which to form a judgment omits to act in the most judicious manner, is not chargeable with negligence. Wells v. McKenzie, 50 Wyo. 412. One called as expert must first show his qualifications and then testify only respecting matters on which he has peculiar knowledge. Moffett v. Bozeman Canning Co., 26 P.2d 973, 95 Mont. 347. The opinion of a public officer who investigated an automobile collision on the spot immediately or shortly after it occurred as to what acts of a party caused it is inadmissible. Bellington v. Schaal, 42 Wn.2d 878, 259 P.2d 634.

POINTS OF COUNSEL FOR RESPONDENT.

On principle it would appear that the existence or presence of smoke, snow, fog, mist, blinding headlights or other similar elements which materially impair or wholly destroy visibility are not to be deemed intervening causes but rather as conditions which impose upon the drivers of automobiles the duty to assure the safety of the public by the exercise of a degree of care commensurate with such surrounding circumstances. Templar v. Tongate, 71 Wyo. 148. Being blinded by the sunlight is no exception to the rule. Meads v. Deener, 128 Cal.App. 328, 17 P.2d 198. It is the duty of a driver to stop when he is entirely unable to see the way ahead of him, and it has, therefore, been held negligence for the driver to continue to drive ahead when he is completely blinded by the headlights of an approaching vehicle, an electric arc street light, or the reflection of street lights in his windshield, or when his vision is entirely obscured by smoke, steam, fog, dust, or other conditions of the weather. 60 C.J.S. 698, 32 A.L.R. 881. Where the vision of the driver of an automobile is obscured whether by the lights of an approaching car, fog, smoke, or for any other reason, it is his duty to stop until visibility is restored, or to reduce his speed and have his car under such control that he can stop immediately if necessary. French v. Nelson, 111 Vt. 386, 17 A.2d 323. The credibility of the witnesses and the weight of their testimony are for the jury alone to determine. Brown v. Wyoming Butane Gas Co., 66 Wyo. 67, 205 P.2d 116, 118; Dulaney v. Jensen, 63 Wyo. 313, 181 P.2d 605. The rule is broadly stated in a great number of decisions representing nearly every court in America that the verdict or findings of a jury rendered on the trial of a cause will not be disturbed by a reviewing court where the evidence is conflicting. 4 C.J. Section 2836, pp. 857. It is a rule of general application that it is not the province of the appellate court to weigh the evidence where it is conflicting. The rule as more broadly stated in most jurisdictions, is that the verdict or findings of a jury rendered on the trial of a cause will not be disturbed by a reviewing court. 5 C.J.S. Appeal and Error, Sec. 1648, p. 611. In cases tried to a court a general finding is one of every special thing necessary to be found to sustain the judgment. Hinton v. Saul, 37 Wyo. 78, 259 P. 185.

OPINION

BLUME, Justice.

This is an action for damages brought by plaintiff against defendant arising out of an automobile collision, the plaintiff alleging as one of the reasons for recovery that defendant traveled on the wrong side of the road at the time of the collision. The case was tried to the court without a jury. The court made a general finding in favor of the plaintiff and against the defendant and rendered judgment against defendant for $825.89 and costs. From that judgment the defendant has appealed.

The collision occurred about twenty miles south of Creston Junction in Carbon county, Wyoming. The plaintiff was driving a Buick automobile and was traveling south. The defendant was driving a Ford pickup truck and was traveling north. The oiled part of the road was eighteen feet in width. There was snow on the road as well as in the borrow pits. It was snowing and the visibility was poor. There were bare spots, however, along the edges of the road by which the road itself could be noticed. The plaintiff testified that he drove within a few inches of the west side of the road — his own side; that he saw the pickup truck when it was within about twenty-five feet of him; that he then put on the brakes, slowed his car; but that his car collided with the truck, smashing the front part of his car, and causing other damages. The defendant testified that while he was traveling north he met a snowplow traveling south which threw up a cloud of snow making it impossible for him to see; that he passed the snowplow safely; that he continued his path straight ahead; that almost immediately after the snowplow had passed him, he saw the Buick car and the collision occurred; that in view of the fact that he safely passed the snowplow and continued straight on his way, he was on his right side of the road — in other words that the Buick car was on the wrong side of the road. He was corroborated by the witness Hays and to some extent by the witness Jones. Plaintiff denied that any snowplow was immediately ahead of him. That is corroborated by the highway patrolman.

However, aside from the fact that here appears a conflict of testimony, the verity of which was to be resolved by the trial court, the contention of the defendant is contradicted by a substantially uncontroverted physical fact. Highway patrolman Peterson was called and arrived at the scene of the collision within about half an hour thereafter. According to his testimony, which is not contradicted, both cars were then standing in plantiff's lane of travel — the west lane; they were still together, interlocked, and had to be pulled apart. The Prestone which had leaked from both cars was about in the center of the west lane; the pickup truck, standing somewhat at an angle, had to be moved only a few feet in order to clear the east lane of traffic for other cars to pass. This would seem to show conclusively that the defendant's truck was not in its proper lane of traffic.

Counsel for the defendant contends that the latter was confronted by an emergency which he met the best way he could, and that the mere fact that he may have swerved somewhat to his left cannot alone hold him responsible. He cites a note in 6 A.L.R. 680 which states:

"* * * an automobile driver, who by the negligence of another and not by his own negligence is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice." It is doubtful that the note is applicable here since it does not appear that the driver of the snowplow was negligent, and according to the court's finding, the plaintiff was not negligent. Counsel also cites the case of Johnson v. Prideaux, 176 Wis. 375, 187 N.W. 207, where it was held that when the defendant was enveloped by a cloud of dust and brought his car to a stop as soon as possible but inadvertently swerved his car into the wrong lane of travel that itself did not make him liable since he met the emergency as best he could. In that case it appears that the plaintiff saw that defendant was enveloped by a cloud of dust but continued driving until he hit the defendant's car. The facts in this case are not the same. We fully recognized the rule of a sudden emergency in the case of Wells v. McKenzie, 50 Wyo. 614, 62 P.2d 305. And it may be that if the defendant's testimony were true there might have been some grounds for the trial court to absolve him from responsibility for the collision. But the court evidently did not credit that testimony, and we are bound by that holding. The physical facts would seem to indicate that the defendant did not slightly "swerve" from his course by reason of an emergency as counsel for defendant would have us believe that he was traveling on the wrong side of the road at the time of the collision as well as before that time, when, by reason of the fact that the visibility was poor, he should have observed special care to stay on his side of the road. See Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223.

Counsel alleges as error that highway patrolman Peterson was permitted as an expert to testify that the defendant was the cause of the collision. It is doubtful that there was sufficient testimony in the record to show that Peterson was an expert. The mere fact that a person is a highway patrolman does not necessarily show that he is such an expert. In this case Peterson became a highway patrolman in September 1951, and the collision in question occurred the following February. For aught that appears, he never saw a collision before. However, "the question of whether an expert witness is qualified rests largely in the judicial discretion of the trial court," 9C Blashfield, Cyclopedia of Automobile Law and Practice 511; and we do not feel warranted to reverse the cause herein simply because the court considered Peterson an expert.

Peterson testified he considered that the defendant was the cause of the collision. No objection to the particular question calling for that answer was interposed, although the course of examination showed that the court considered that question as not objectionable. That answer stated the ultimate fact which the court was called upon to answer, and the general rule undoubtedly is that "an expert witness must not take the place of the jury and declare his belief as to the ultimate fact to be determined by it." 9C Blashfield, Cyclopedia of Automobile Law and Practice 508. See the lengthy discussion of the subject in 20 Am. Jur. 653. In 9C Blashfield, Cyclopedia of Automobile Law and Practice 506, it is stated: "Normally, expert testimony is inadmissible to show how and where an accident took place, or the position of the automobiles." Beckman v. Schroeder, 224 Minn. 370, 28 N.W.2d 629, is cited. In Moniz v. Bettencourt, 24 Cal.App.2d 718, 76 P.2d 535, syllabus 6 states as follows:

"Courts look with disfavor upon expert testimony reconstructing automobile collision from physical and mathematical facts on ground that complete knowledge of exact speed, course of wind, and force of impact, is impossible, and that reaction of human mind under a certain set of circumstances cannot be established."

See also Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617; Long v. Shafer, 162 Kan. 21, 174 P.2d 88; and in Billington v. Schaal, 42 Wn.2d 878, 259 P.2d 634, 637, the court stated:

"It is not proper to permit a witness to give his opinion on questions of fact requiring no expert knowledge, when the opinion involves the very matter to be determined by the jury, and the facts on which the witness founds his opinion are capable of being presented to the jury."

We need not, however, investigate the subject before us too closely. Even if it was error to permit the foregoing testimony of the highway patrolman, it does not necessarily follow that it was prejudicial. We said in Williams v. Yocum, 37 Wyo. 432, 263 P. 607, 611:

"Stated in another way and in general terms, the great weight of authority seems to support the principle that, where there is sufficient competent evidence to sustain a finding in a case tried by the court without a jury, admission of incompetent evidence is not ordinarily a ground for reversal."

We affirmed that rule in Russell v. Curran, 66 Wyo. 173, 206 P.2d 1159. See also 3 Am. Jur. 505; 5 C.J.S. 405, 406, 407. There is ample, competent testimony in the record to sustain the finding of the trial court; and there is nothing in the record which shows that the court did not decide the case upon such testimony. We think the judgment was right, and it is accordingly affirmed.

Affirmed.

RINER, C.J., and HARNSBERGER, J., concur.