Arnold v. Jennings

Full title: WENDELL DEAN ARNOLD, Plaintiff and Appellant, vs. LEWIS M. JENNINGS…

Court: Supreme Court of Wyoming

Date published: May 15, 1956

296 P.2d 989 (Wyo. 1956)

296 P.2d 989

Opinion

No. 2734

May 15, 1956

1. AUTOMOBILES. "GROSS NEGLIGENCE" DEFINED. "Gross negligence" under guest statute is indifference to present legal duty and utter forgetfulness of legal obligations. W.C.S. 1945, § 60-1201. Page 469

2. APPEAL AND ERROR. FUNCTION OF REVIEWING COURT. Function of reviewing court is to decide whether there was sufficient evidence before trial court upon which to base the judgment rendered. Page 469

3. EVIDENCE. AS To CREDIBILITY OF WITNESSES. The court, acting as trier of facts, may evaluate testimony and believe any, all or none of the witnesses as circumstances warrant. Page 469

4. AUTOMOBILES. WHERE EVIDENCE CONFLICTING. Conflicting evidence warranted denial of recovery to automobile guest in action against host for injuries sustained when automobile overturned. W.C.S. 1945, § 60-1201. Page 469

5. APPEAL AND ERROR. WHERE ERRORS IN ADMISSION OF EVIDENCE HARMLESS. In action tried by court without jury, any error in admission of evidence would be harmless where evidence sustained the judgment, and same principle applies to exclusion of evidence which would not substantially change the basic facts before the court. Page 470

6. APPEAL AND ERROR. JUDGMENT NOT DISTURBED ON CONFLICTING EVIDENCE. Where testimony is conflicting, trial court's finding should not be disturbed unless clearly erroneous or against the great weight of evidence. Page 470

Action by automobile guest against host for injuries sustained when automobile overturned. The District Court of Sheridan County, G.A. Layman, J., rendered judgment for defendant and plaintiff appealed. The Supreme Court, Parker, J., held that evidence sustained the judgment.

Affirmed.

Appeal from the District Court of Sheridan County, Wyoming; the Honorable G.A. Layman, Judge.

For the plaintiff and appellant, the cause was submitted upon the brief of E.E. Birchby of Sheridan, Wyoming.

For the defendant and respondent, the cause was submitted upon the brief and also oral argument of William D. Redle of Sheridan, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Evidence of attempting to follow a curve in the highway at a speed of seventy miles per hour, with which curve the defendant was familiar, plus an element of an affirmatively reckless state of mind, the defendant telling his guest passengers that he was taking them for a thrill ride, authorized a jury to find that his conduct in this respect, resulting in injuries to a guest passenger, transcended mere negligence and approached deliberate misconduct. Mitchell v. Walters, 100 P. 2 nd 102. Our Wyoming Supreme Court in the case of Mitchell v. Walters, on page 108, 100 P.2d 102, states that where wilful and wanton misconduct is concerned there cannot be any great difficulty in determining its meaning with reasonable precision, as stated by Blashfield, supra. The real difficulty arises when the language gross negligence is invoked. The definition given by Chief Justice Rugg and quoted above is doubtless as accurate as can be supplied. The text of 4 Blasfield Cyclopedia of Automobile Law and Practice, Permanent Edition, Section 2322, page 107, discussing gross negligence, states the rule to be that it may consist of the breach of some statutory duty, but the driver's mere error in judgment, momentary inattention, or loss of presence of mind does not make out gross negligence. As a general rule, a witness must testify to facts and not conclusions or opinions. It is the duty of the jury, and not the witness to draw inferences from the evidence and form opinions from the facts presented. State v. Barrett, 33 Or. 194, 54 P. 807, 808. As a general rule, whenever the appearance of a person, place or object is relevant, a photograph or picture thereof which is practically instructive is admissible to explain the evidence and aid in its application and to assist the court or jury in understanding the case. 32 C.J.S. 611. Before a photograph may be admitted into evidence it must be shown by extrensic evidence to be a true and faithful representation of the place or subject it purports to represent as it existed at a time pertinent to the inquiry; and if for any reason it does not appear to represent the subject or condition existing at such time in such a way as to be instructive it may be excluded. It is not necessary that the situation or condition should be precisely the same, but it is sufficient if the situation is substantially unchanged, or if the things sought to be shown by the photograph and pertinent to the inquiry remain truthfully represented, and where it is satisfactorily shown to be a truthful representation to such extent it is immaterial when the photograph was taken, or that no proof is offered as to the time when it was taken. 32 C.J.S. 620, 621.

POINTS OF COUNSEL FOR RESPONDENT

Whether a turn of the road can be made with reasonable safety at any particular speed depends, of course, upon the character and condition of the road and the skill of the driver. We cannot draw a line beyond which mere speed in making a turn departs from negligence and becomes willful and wanton misconduct. Conceding that defendant was negligent in making the turn at high speed, it would not constitute gross negligence. Bobich v. Rogers, 241 N.W. 854. Conduct arising from momentary thoughtlessness or inadvertance or from an error of judgment does not manifest a reckless disregard for the rights of others so as to serve as a basis for recovery by an injured automobile guest. 4 Blashfield Cyc. of Auto. Law Practice Sec. 2322. Under statutes limiting the host's liability to cases of reckless operation, the mere violation of the established speed standard or failure to have the automobile under control is not recklessness entitling a guest to recover, nor is it where gross negligence is required in order to entitle the guest to an action against the host. Sec. 2325. The rule followed by this court in actions at law where there is conflicting testimony is well known. The rule with its reasons is stated in Conway v. Smith Mercantile Co., 6 Wyo. 468, 46 P. 1084 and is as follows:- The question is whether there is sufficient evidence to sustain these findings. It is not whether this court from the written report of the evidence, would so find. The trial court had most of the principal witnesses before it, giving that court the better opportunity to judge of their character and credibility.

OPINION

PARKER, Justice

On July 7, 1954, plaintiff Wendell Dean Arnold asked Lewis M. Jennings to drive him from Sheridan, Wyoming, some four miles into the country to inquire about a job. On the return trip early on the morning of the 8th, the car driven by Jennings left the road and overturned, throwing plaintiff some thirty or forty feet and injuring him. He sued defendant in the District Court of Sheridan County for $15,767.85, alleging that he was a "guest passenger" and that the injuries occasioned to him were the result of defendant's "gross negligent, willful and wanton act." The court, acting without a jury, dismissed plaintiff's petition and made the following finding:

"The Court expressly finds that on July 8, 1954, the Plaintiff was riding as a non-paying guest passenger in the automobile of the Defendant; that Defendant was driving his automobile and that the Defendant while so driving was blinded by the lights of an oncoming car, and that Defendant turned his Studebaker sedan sharply to the right to avoid colliding with said oncoming car and while so doing ran off the shoulder of the road, over an embankment, hitting a ditch and causing the Defendant's automobile to overturn.

"The Court further finds that Plaintiff has failed to prove by a preponderance of the evidence that such accident was caused by the gross negligence or by the wilful and wanton misconduct of the Defendant."

Plaintiff has appealed, urging that the judgment is invalid for the reason that it is contrary both to the law and the evidence. He also insists that the court erred in certain rulings regarding the evidence and exhibits. Plaintiff made no claim that defendant was negligent on the trip out and states in his brief that the parties "proceeded to drive out in a safe and prudent manner." We therefore examine the record to determine what evidence was presented regarding defendant's negligence on the return trip and find the following testimony by plaintiff. "He [defendant] drove away from the house fast. * * * he was driving so fast on the dirt road that I told him that it was a terrible road, he might hurt his car * * *. He was driving very fast. * * * * [I warned] Mr. Jennings against speeding the car * * * probably 4 or 5 times. * * * I told Duke that he was going too fast to make that corner * * *. I do not know how fast he was drivin, * * *. He was driving too fast for the road * * * I don't know how fast in miles per hour. I did look at the speedometer, too, but I wasn't thinking about how many miles an hour. I was just observing where the hand was and how fast we were going. * * * [It was] at an angle; about one o'clock. * * * he [was] on the wrong side of the road going around that corner. * * * then we started back and come along the center line."

Opposed to this testimony was that of defendant that plaintiff "didn't * * * [caution me] * * * about the speed * * * never showed any nervousness at all in coming back on the return trip. * * * on the corner prior to the corner where the accident occurred * * * [I was going] approximately 35, 40 miles an hour. * * * as we approached the curve I saw these car lights coming and he had bright lights on and was on my side of the road, and I got over when I seen he was going to hit me headon. I swerved to the right and I couldn't get it back on the road."

The witness, Howard Heiduck, a highway patrolman, testified that from his examination he "thought it [defendant's car] had been traveling at a fast speed. * * * I had made that curve at between 45 and 50 miles an hour and found no swerving of the car and no difficulty in keeping it on my own side of the road. * * * [I] never saw any sign or track of any kind which would in any way indicate * * * that Mr. Jennings' car had ever been on the wrong side of the center line * * *.

While the foregoing is not a complete resume of all the testimony relating to the alleged improper acts of the defendant, it is representative of the entire evidence on the subject and incorporates the strongest proof adduced by plaintiff. Since plaintiff did not urge willful or wanton misconduct on the part of defendant, he apparently relies solely on his proof of defendant's gross negligence which under Hawkins v. L.C. Jones Trucking Co., 68 Wyo. 275, 300, 232 P.2d 1014, 1023, is defined as that:

"* * * `indifference to present legal duty and * * * utter forgetfulness of legal obligations' which our statute declares must exist before a liability arises, § 60-1201, W.C.S. 1945, Altman v. Aronson [ 231 Mass. 588, 121 N.E. 506] * * *."

Whether the trial court, if it had unreservedly accepted plaintiff's version of the accident, would have been justified in finding defendant to have been grossly negligent under that definition might be questioned, but need not here be determined.

Our function in an appeal such as this is to decide whether there was before the court sufficient evidence upon which to base the judgment rendered. Boyle v. Mountford, 39 Wyo. 141, 149, 270 P. 537, 539. The court, acting as a trier of facts, was entitled to evaluate the testimony and believe any, all, or none of the witnesses as the circumstances warranted. See Caswell v. Ross, 27 Wyo. 1, 10, 188 P. 977, 980; Gould v. James, 43 Wyo. 161, 166, 299 P. 275, 276. Defendant's testimony was in substantial conflict with that of the plaintiff and, if believed by the court, was sufficient to negative any right of recovery and to sustain the finding and judgment.

This being true, plaintiff's various specifications of error relating to the admission and rejection of certain evidence does not warrant discussion since even if the complaints were well founded any error would be harmless. This point calls to mind the statement in Williams v. Yocum, 37 Wyo. 432, 455, 263 P. 607, 611, quoted with approval in Macy v. Billings, Wyo. 289 P.2d 422, 424:

"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. * * *"

The same principle applies to the exclusion of evidence which would not substantially change the basic facts before the court. See Hudson v. Erickson, 67 Wyo. 167, 216 P.2d 379; Ruegamer v. Rocky Mountain Cementers, Inc., 72 Wyo. 258, 263 P.2d 146. The rule that where testimony is conflicting the finding of the trial court should not be disturbed unless such finding is clearly erroneous or against the great weight of evidence has been so often repeated by this court as to now be axiomatic. See Hester v. Smith, 5 Wyo. 291, 40 P. 310; Jackson v. Mull, 6 Wyo. 55, 42 P. 603; Columbia Copper Min. Co. v. Duchess Mining, Milling Smelting Co., 13 Wyo. 244, 79 P. 385; Slothower v. Hunter, 15 Wyo. 189, 88 P. 36; Williams v. Yocum, 37 Wyo. 432, 263 P. 607; Meyer v. Cully, 69 Wyo. 285, 241 P.2d 87. In the present case, the finding is neither clearly erroneous nor against the great weight of the evidence.

For the reasons above stated, the judgment of the lower court is affirmed.

Affirmed.

BLUME, C.J., and HARNSBERGER, J., concur.