Ford Motor Company v. Arguello

382 P.2d 886, 1963 Wyo. LEXIS 94

• Court: Wyoming Supreme Court
• Decided: June 19, 1963
• Docket: 3054
• Status: Published

Opinions

Mr. Justice McINTYRE

delivered the opinion of the court.

One of the defendants in this case, Ford Motor Company, has appealed from an adverse verdict and judgment in the District Court of Uinta County. Suit had been brought against Harold Peterson and Ford by Manuel Arguello, plaintiff, who was seriously injured while riding as a guest in a Ford automobile owned and driven by Peterson. The judgment was against both defendants and in the amount of $103,000.

The contentions made by Ford, on appeal, are these:

1. The courts of Wyoming have no jurisdiction over Ford Motor Company.

2. The evidence was insufficient to support a finding that the accident was proximately caused by any negligence on the part of Ford.

3. Plaintiff was guilty of contributory negligence as a matter of law and .also assumed the risk as a matter of law.

4. Misconduct on the part of plaintiff’s counsel prevented appellant from having a fair trial.

The accident in which Arguello was injured happened November 22, 1957. The automobile involved was a new 1957 Ford. Claiming gross negligence on the part of Peterson, the driver, and negligence on the part of Ford, manufacturer of the car, Ar-guello sued both the driver and manufacturer. The case was tried to a jury and a joint verdict was returned against both defendants. Peterson and Ford each filed notice of appeal from the judgment rendered on this verdict, but Peterson subsequently abandoned his appeal. The case is now before us for review on Ford’s claim of errors.

At the trial Peterson complained of having difficulty steering his car from the time it was purchased. He had been told it was not “tracking.” According to him it was inclined to pull to the right, particularly on winding roads or left-hand turns, and there was some problem about the tires holding air.

On the evening of the accident Peterson, Arguello, and Harold Hoopes stopped after work, on a construction job, and spent several hours at a bar in Fort Bridger, Wyoming. While there, Peterson claims he looked at the tires and they looked okay. During the time spent at the bar he and the others drank intoxicants. The testimony regarding just what and how much Peterson drank is conflicting.

Peterson had offered to drive Arguello and Hoopes to Lyman, Wyoming, and as the men left they took some beer with them. With Peterson driving and Hoopes next to him and plaintiff on the right of Hoopes in the front seat, the three started toward Lyman which is some four miles east of Fort Bridger.

Peterson immediately accelerated the car and after about one mile made the right turn of an “S” curve. According to Hoopes, he glanced at the speedometer just east of this turn and the car was going 85 miles per hour. Hoopes asked Peterson to slow down, but Peterson said he would do the driving. Arguello was leaning over Hoopes to adjust the radio and as they came around the curve he was pushed over on Hoopes. Pie testified that he glanced at the speedometer at that time, and it showed pretty close to 85 miles per hour. He also told Peterson to slow down because he l<new there was another curve coming, but Peterson continued his speed. Just at the beginning of the left turn of the “S” curve the car left the highway.

Sergeant Wold of the highway patrol was notified of the accident. He arrived soon •after it happened and made an investigation. His testimony indicates the blacktop of the highway was 23 feet 6 inches wide. 'The graveled shoulder was about five feet wide, and from that point the road dropped ■off into a barrow pit.

His testimony further established that ■the automobile went off the blacktop of the highway and continued on the shoulder and ■in the barrow pit a distance of 240 feet, at which point it went over a “terraced off” ■place and landed 30 feet further along in ■the bottom of a drain ditch. It then rolled •another 95 feet to the place where it came to rest.

This witness theorized that the car landed, after being off the ground for 30 feet, •on its right-front wheel, with the vehicle sloping downward and tipped to the right. It made a deep “gouge mark” at the place ■of landing. Other witnesses appear to have accepted the theory that the automobile was in the air for a distance of 30 feet and that it landed as the patrolman said. It is not disputed that the force of the impact, when the vehicle landed, caused the spider of the right-front wheel to separate from the rim.

Jurisdiction

In a separate opinion, Mr. Justice Gray fully discusses the question of jurisdiction. His views on that subject are the views of the court, and for the reasons stated in his opinion we hold the district court had jurisdiction of the subject matter and of Ford Motor Company for purposes of this case. The repetition of our reasons for so holding would serve no purpose in this opinion.

Negligence of Ford

In view of our guest statute, it is clear •from the verdict of the jury, against both 'defendants, that the jury found Peterson guilty of gross negligence and that his negligence was one of the proximate causes of the accident. It is equally clear that the jury found negligence on the part of Ford, in manufacturing the accident vehicle, and that this negligence was a concurrent proximate cause of the accident.

Although the evidence in that regard is in conflict, there was ample expert testimony for the jury to have found, and apparently it did so find, that some of the rivets holding the rim to the spider, on the right-front wheel, were inferior in quality. This would indicate poor metallurgical control and a lack of proper inspection for the purpose of keeping the quality of the rivets up to prescribed specifications, during the manufacturing process.

The spider of which we speak takes the place of spokes in a wheel. It is that part of the wheel that fastens onto the hub and the rim. It is a hollow-shaped disk, stamped and pressed of sheet steel and having-four flanges which fasten to the rim. Each wheel has 12 rivets in a single line around the rim, with three rivets for each of the four flanges.

All rivets in this wheel which were in place and holding at the time of the impact were sheared off. In fact 11 of the 12 rivets were so sheared. The shearing effect caused rivet holes in the rim to be elongated in the direction of separation. For most of the holes, this elongation is visible to the naked eye without magnification. Two of the experts, however, on behalf of plaintiff, from laboratory examinations under magnification, corroborated this.

From their examinations, these two experts testified that one of the defective rivets, designated for identification purposes as number 11, had fractured prior to the accident so that it was not holding at the time of impact and was not sheared. Both witnesses said this fracturing would sooner or later allow the rivet to pop out of its hole and into the tire, which was a tubeless tire. The result would be a flat tire caused by air escaping out of the rivet hole. One of the witnesses went on to express the opinion, based upon his independent examination, that rivet number 11 was out of its hole at the time of the accident.

Peterson himself testified repeatedly, and without contradiction, that he felt a flat or low tire. He said he did not know whether it went all the way flat before the wreck, but it was leaking air and it felt like an awfully low tire. He described the result by saying it kept pulling me and pulling me farther and farther down into the ditch, and after he got down into the ditch he could not get back up on the road. Again, he explained that at the time it was happening he did not think the tire was clear flat, but that it was pulling more all the time. He insisted the tire being like it was is what pulled him into the barrow pit.

This testimony standing alone, if the jury believed it, would entitle the jury to find that the loss of air in the right-front tire was one of the causes for the automobile leaving the highway and therefore a concurrent cause of the accident. The tire itself was found after the accident to have no puncture and no place for rapid air escape, unless there had been an open rivet hole.

This, if the testimony of Peterson was believed, leaves the inevitable conclusion that the fractured rivet referred to in the testimony of plaintiff’s experts popped out of the hole letting air escape, and that the low tire with Peterson’s fast driving caused the vehicle to get out of control and wreck.

We have frequently said it is the function of an appellate court to ascertain whether or not there was substantial evidence upon which the jury could base its opinion if it believed the testimony, and that it is not for us to evaluate the evidence presented. Culver v. Sekulich, Wyo., 344 P.2d 146, 156. The jurors being the sole judges of the credibility of witnesses, we need not say whether they should or should not have believed the testimony of Peterson.

However, there are circumstances where the testimony of a single witness may not be sufficient to support a verdict, such as testimony which is contrary to known physical facts. See Oeland v. Neuman Transit Company, Wyo., 365 P.2d 806, 810. Therefore, we pause to examine Peterson’s testimony with a view of determining whether it was corroborated by other evidence and whether it is in fact corroborated or contradicted by known physical facts.

Other Evidence

It is undisputed that the automobile began to go off the blacktop and onto the shoulder of the highway at a point after a right curve and before a left curve. The tracks indicate that upon leaving the blacktop a rather straight course was followed. No part of the left curve being approached was negotiated, and it cannot be said the accident was one of inability, because of speed or intoxication, to make a curve. Moreover, neither of the other two passengers, both of whom testified, suggested any distraction or inattention to his driving on the part of the driver.

The highway here involved had a five-foot shoulder with gravel, between the blacktop and edge of the barrow pit. Hoopes testified, at least three different times, that the car felt like it had a pulling on it, or that it was pulling, and that then the gravel was coming up underneath the car. Also, he testified:

“We was still on the shoulder of the road and he held it on the shoulder of the road for quite a while until that big lunge come and then a little gravel right then, but we was off after the lunge, but he held it on the road for quite a while there.”

If the car had merely drifted off the blacktop, and if there were nothing about the vehicle itself causing it to drift, as the evidence would seem to indicate, then the jury might well believe not only that the driver would have done something about the situation before a drift of five feet away from the blacktop, but that the other passengers would have warned the driver he was getting off the road.

To demonstrate what a five-foot shoulder amounts to in width, we point out that the total blacktop in this case was 23 feet ■6 inches wide, making 11 feet 9 inches for a driver’s half of the roadway. This means that the driver on this highway is given a safety margin, on the shoulder, equal to 43 percent of his regular lane.

Not only did passenger Hoopes say the car was pulling and he heard the gravel coming up under the car, but he added, “I just knowed what was going on and I held on like this (indicating).” This testimony, which followed Peterson’s testimony, must have meant to the jury that Hoopes thought ■something was wrong and the car was getting out of control.

This was verified rather definitely by the fact that one of the attorneys on cross-examination gave exactly that implication to Hoopes’ testimony, and Ploopes did not correct it. The attorney asked, “Could you tell that the car was out of control or that there was something wrong before you got to this curve ? ” The witness went ahead to explain it was before they got to the curve. He did not correct the implication in the question that the car was out of control or that there was something wrong.

Additionally, there is physical evidence that the tire was substantially flat upon impact. This is verified by undisputed evidence showing that after the accident there were pebbles embedded between the tire and rim. Obviously, such pebbles could not have been picked up on impact if the tire had been fully inflated. But it would he quite logical for such material to be picked up if, upon impact, the tire were flat enough to be pushed to the inside as the wheel struck at an angle.

It is sufficient for our decision to say the jury was at least entitled to believe, from all the evidence before it, that something besides Peterson’s reckless driving helped to cause the automobile in this case to go off the highway; that this something was a flat or low tire; and that the flat or low tire was caused by rivet number 11 being defective, fracturing and popping out of its hole thereby letting air out of the tire.

If the jury did so believe, then it properly found that the negligence of Ford in permitting defective rivets to be used in the manufacture of the wheel was a concurrent and proximate cause of the accident in which plaintiff was injured.

Additional Questions

As to whether plaintiff-Arguello can be said to be guilty of contributory negligence as a matter of law, or whether he assumed the risk of injury as a matter of law, counsel on both sides of the case have discussed the two matters together, and we shall do likewise. Distinctions between assumption of risk and contributory negligence have not been adopted in Wyoming. See Rocky Mountain Trucking Company v. Taylor, 79 Wyo. 461, 335 P.2d 448, 451; and Askin v. Dalgarno, 10 Cir., 293 F.2d 424, 426.

We cannot say as a matter of law to what extent Peterson was under the influence of intoxicating liquor. We do know from his own admissions and from undisputed evidence that he drove at an excessive speed. This was sufficient to constitute contributory negligence on the part of Peterson and to bar him from a recovery against Ford. The trial judge therefore properly directed a verdict in favor of Ford, on a cross-complaint by Peterson. That did not, however, constitute a finding that Peterson’s drinking was a proximate cause of the accident.

Drinking on the part of Peterson is not denied, although the highway patrolman, a deputy sheriff and four other witnesses testified without direct contradiction that he was not “drunk.” In any event it cannot be said as a matter of law that such drinking was a proximate cause of the accident. As stated in Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 55 P.2d 870, 874, it is for the jury to determine whether the intoxication of a driver proximately contributed to an accident, unless the court is compelled to say from the facts that reasonable men could draw no other inference.

It necessarily follows in the instant case that if the drinking of Peterson cannot be said as a matter of law to be a proximate cause of the accident, then his guest cannot be said as a matter of law to be guilty of contributory negligence or assumption of risk.

It is settled in this jurisdiction that the question of contributory negligence or assumption of risk is not one of law except in the clearest case. McDowall v. Walters, Wyo., 360 P.2d 165, 168, rehearing denied Wyo., 361 P.2d 528; Borzea v. Anselmi, 71 Wyo. 348, 258 P.2d 796, 800; Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, 231. The facts in this case do not indicate it to be such a case.

Generally, the questions as to whether the intoxication or drinking of the operator of an automobile was the proximate cause of injuries received by his guest, and whether the guest knew or should have known the driver was intoxicated are problems for the determination of the jury; and a reviewing court may not interfere with its conclusions when there is substantial evidence to support the findings, as there is in this case. Kroplin v. Huston, 79 Cal.App.2d 332, 179 P.2d 575, 580; Davis v. Hollowell, 326 Mich. 673, 40 N.W.2d 641, 15 A.L.R.2d 1160; Westergard v. Peterson, 117 Mont. 550, 159 P.2d 518, 520. See Annotation 15 A.L.R.2d 1165.

Appellant-Ford claims counsel for plaintiff persisted throughout the course of the trial in conduct violative of well known standards of courtroom decorum. Instances complained of are itemized in appellant’s statement of the case. To this accusation appellee counters by citing similar instances of alleged misconduct on the part of counsel for Ford.

Our attention is not directed to any particular objections made during the course of trial where proper corrective measures were not immediately taken' by the trial judge. In fact, appellant admits that perhaps no one of the matters referred to in this connection would be sufficient, standing alone, to - warrant a reversal. As to-whether all of them taken together, without a showing of failure on the part of the-judge to correct when requested to do so, would be grounds for reversal, no authority is called to our attention. Here again counsel for appellant admit their research has discovered no case closely similar or analogous.

Under these circumstances, we do not' consider there would be sufficient justification for a new trial on account of the alleged misconduct of counsel.

Finding no reversible errors in either the-verdict of the jury or the judgment of the-court we affirm the judgment entered.

Affirmed.