409 P.2d 964 | Wyo. | 1966
Lead Opinion
delivered the opinion of the court.
This was a suit for personal injuries of a minor, Richard C. Iglehart, whose bicycle and the car driven by defendant, Virginia Petrossi, collided in a Casper street. At the time of the accident, the minor was eight years, nine months, old. Trial was to a jury, but defendant, upon conclusion of plaintiff’s evidence and again after her own, moved for a directed verdict. The court reserved decision on the first motion but granted the second, and from such ruling this appeal resulted.
Plaintiff having presented no witness concerning the collision except defendant, these facts are undisputed: Defendant, in a Plymouth 4-door station wagon, was proceeding easterly along Fifteenth Street in Casper about 8:15 on the morning of June 19, 1963, accompanied by a Mrs. Reich, who sat in the front seat, and four children, who were in the rear. The weather was clear, the sun was not in her eyes, but she was wearing sunglasses. Fifteenth, a through street, ran east and west; the street, Westridge Terrace, to defendant’s right, ran north and south, and was marked with a stop sign where it intersected Fifteenth, there becoming a dead end. Another dead-end street, Cypress, came from the north into Fifteenth a short distance west of the mentioned intersection. Fifteenth Street was forty-three feet wide at the intersection, and Westridge Terrace thirty. Beginning 300 feet west of West-ridge Terrace, Fifteenth Street sloped slightly upward, rising approximately ten feet over a distance of 250 feet, cresting at Cypress and being approximately level from Cypress on to Westridge. As the defendant approached Westridge Terrace, she was looking forward and to the sides.
Plaintiff’s arguments that the court erred in directing a verdict for the defendant must be viewed first in the light of any negligence proved against her and second any contributory negligence of the injured boy. To support his contention that defendant was negligent, plaintiff says this was a residential area, that defendant knew that small children were in the neighborhood, that they rode bicycles, and had had them run out from intersections in front of her before; that she not only should have known these facts, she did know them. She did not slow down. She did not look. She did not sound her horn, and did not swerve to avoid the collision, tie cites Holstedt v. Neighbors, Wyo., 377 P.2d 181, and Feltner v. Bishop, Wyo., 348 P.2d 548, for the principle that if a motorist is aware children are in the habit of playing around an area there is a duty imposed on the operator of the motor vehicle to exercise a higher degree of care than under ordinary circumstances. Although this court has recognized the rule, we have not made it so all-embracing as to mean that such a high degree of caution must be exercised that possibility of accident is entirely obviated despite an unforeseeable circumstance. Moreover, the evidence here while indicating that this was a residential area having children who rode bicycles did not show it to be the type
Viewing the record of this case in the aspect most favorable to plaintiff, there is no evidence whatever of any violation of a statute or ordinance or in fact of negligence of any kind. Thus, the court was fully justified in directing a verdict for defendant at the conclusion of the case and such action was warranted at the time the plaintiff rested.
Basic to plaintiff’s contention that defendant was negligent in this case is the reference to this court’s quotation in McDowall v. Walters, Wyo., 360 P.2d 165, 169, of a statement from 1 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, Perm.Ed., 1960 Cum. Pocket Part, § 681, p. 209: “ ‘It has been stated that failure to look at all constitutes negligence as a matter of law while the question as to whether one who looks sees all that he should see is one of fact for the jury.’ ” A clarification of any misconception drawn from that case is warranted. Initially, it should be noted that the quoted statement from Blashfield was based on Taylor v. Pacific Container Co., 148 Cal.App.2d 505, 306 P.2d 1049, which noted an erroneous instruction, apparently making not only failure to look but failure to see negligence as a matter of law. Under the circumstances existing in the McDowall case,
Since we hold that there is no evidence of defendant’s negligence and that the court was therefore justified in directing a verdict for the defendant, there is no occasion to discuss the question of contributory negligence or the last-clear-chance doctrine, which under certain conditions operates to relieve a plaintiff’s negligence if notwithstanding this defendant could have avoided the accident.
Affirmed.
. Plaintiff bad been struck by defendant at night when defendant’s car was making a turn into a driveway entrance to some lots. There was testimony that new and powerful street lights at either end of the block were good and adequate; pedestrians could be seen in the middle of the block from these lights alone; there was a photograph of the area in evidence which showed the entire area to be clear, open and free from depressions; the area appeared to be free from trees or objects which could cause shadows and there were no weeds or vegetation which could produce a camouflaging effect.
Dissenting Opinion
dissenting.
I do not, of course, pretend to say defendant was in fact negligent. The question before us is whether the jury should have been allowed to decide whether defendant was or was not negligent.
According to admissions of the automobile driver and other testimony favorable to the boy, Mrs. Petrossi was driving toward the east in the early morning, with
The plaintiff was riding a bicycle toward the north, which would be from defendant’s right. Through some trees on her right, defendant could see well into plaintiff’s street. She had a wholly unobstructed view into plaintiff’s street for a distance of 40 feet from the intersection, without looking through the trees.
As to whether she tried to look through tire trees, defendant testified: “No, I didn’t look directly through the trees * * She also admitted she would have been able to see through the trees if she had been going less than 25 miles per hour.
Being shown a picture of the intersection area at the time of trial, the defendant admitted a boy on a bicycle could be seen back from the intersection without looking through trees. In fact, a witness who had been driving about “two car lengths” behind Mrs. Petrossi testified, when he was about 70 feet from the intersection, he saw the bicycle rider about ten feet from the intersection.
Despite this witness’ ability to see the boy, defendant claims she did not see him until he entered the intersection. A lady friend riding with her claims she did not see plaintiff until he was less than ten feet from the point of impact and out in the intersection. The ladies admit they were talking as they approached the intersection.
It was for the jury and not for the court to decide whether by proper lookout Mrs. Petrossi should have seen plaintiff before she did. See McDowall v. Walters, Wyo., 360 P.2d 165, 169, rehearing denied 361 P.2d 528; and Stowers v. Carp, 29 Ill.App.2d 52, 172 N.E.2d 370, 375-376.
In Feltner v. Bishop, Wyo., 348 P.2d 548, 550, it was said a vehicle driver must be aware that children may be heedless of their safety, especially in areas where children are likely to be found; and that a driver in such cases must constantly exercise the greatest care possible, even to anticipating a child may unexpectedly dart out in front of the driver’s vehicle. Our court held, in that case, it is for the trier to determine whether proper care was in fact exercised.
A motorist proceeding through a residential or thickly populated area where children are likely to be has a duty to exercise a higher degree of care than under ordinary circumstances. Giangrosso v. Schweitzer, 10 La.App. 777, 123 So. 127, 128; Day v. Johnson, 265 App.Div. 383, 39 N.Y.S.2d 203, 207; Bulger v. Olataka Yamaoka, 111 Wash. 646, 191 P. 786, 787.
In Hinsch v. Amirkanian, 7 N.J.Misc.R. 274, 145 A. 232, it was held a speed of 22 to 25 miles per hour in a crowded residential area was sufficient to justify an inference of negligence. See also Butler v. Allen, 233 N.C. 484, 64 S.E.2d 561, 562-563.
Thus, Mrs. Petrossi’s speed of 25 miles per hour, coupled with her failure to see the Iglehart boy before he entered the intersection, should have gone to the jury for a determination of whether she maintained a proper lookout and otherwise exercised proper care for the circumstances present.