This is an action brought by Clara F. Collins, as Executrix of the last will and testament of W.S. Collins, deceased, against Charles W. Anderson to recover damages for the death of said decedent caused by the alleged negligence of Anderson while driving an automobile which upset while Collins was an occupant.
The allegations of the amended petition charging the defendant with negligence are in substance that the car in question was in an unsafe, dangerous and defective condition to drive and operate in that the steering gear was out of repair, worn and loose of which the defendant had knowledge; that he drove said car on a rough and sandy portion of the highway and upon a down grade thereon at a high and dangerous rate of speed, namely, between 25 and 30 miles per hour, and that by reason of the defective steering gear and the high rate of speed over this particular portion of the highway the defendant lost control of the car causing it to upset, and causing Collins injuries which resulted in his death. *Page 278
The answer was a general denial coupled with a further defense that Collins, the defendant and others were at the time of the accident engaged in a mutual or common enterprise and that all had an equal right in the direction or control of the automobile in question.
The trial was before a jury but upon the conclusion of all the evidence in the case the court, upon the motion of the defendant, directed a verdict in his favor. The plaintiff has brought the case here by proceedings in error.
Four grounds were set forth in the motion. They are in substance: First, that the defendant, and the decedent were engaged in a mutual enterprise in which they were interested and in which they had an equal right and voice in the control of the automobile in question. Second, conceding for the motion only that the evidence shows negligence for which the defendant is liable, it also shows that the overturning of the car might have been caused by a puncture in the right front tire for which he would not be liable and that to submit the case to the jury would be to permit them to conjecture as to the cause of the accident. Third, that the evidence wholly fails to disclose any negligence or want of care in the operation of the automobile at the time of the accident. Fourth, that the evidence fails to show the death of Collins was caused by the injury complained of.
In considering whether the trial court was justified in taking the case from the jury we must accept as true the evidence in favor of the plaintiff together with such inferences as might reasonably be drawn therefrom, and then determine whether such evidence and such inferences would support a verdict in the plaintiff's favor if such a one were returned by the jury. We are not concerned with conflicts in the evidence. That is for the jury. Our only inquiry is whether the evidence in the plaintiff's favor if believed by the jury would, with the reasonable inferences therefrom, warrant a verdict in her favor. *Page 279
The evidence in the case shows that while the defendant was not the owner of the car in question, a Ford, he was driving it at the time of the accident and had driven it that day and the day before; that the steering gear was worn and loose, and that the car would not respond to the wheel as it should; that the defendant had knowledge of it before the accident; that the car overturned at the bottom of a stretch of road which was about 5% down grade; that this stretch was about 215 feet long, was rough and at the bottom sandy; that the road made a left turn at the bottom; that just as the defendant started down this sloping piece of road a car came up from behind and the driver therein honked his horn which was heard by the defendant who speeded up his car; that the front wheels of the car then commenced to wobble and the car itself went from one side of the road to the other, or as one witness put it the car was jumping; when it reached the bottom it was about two feet out of the road to the right; it then turned abruptly to the left, upset and catching Collins caused him injuries which resulted in his death. The speed of the car as it went down this slope and at the time it overturned was estimated by witnesses at 15 to 25 miles an hour. One of the occupants said "the fastest the car was going on the trip was at the time of the accident." There is also evidence that the defendant said after the accident, "I am through with fast driving, I have had my lesson."
There is no evidence in the record that the defendant, as he started down the slope, or after the car commenced to "wobble" put the car into a lower gear, or attempted to do so or applied the brakes or attempted to do so, or did anything to check its speed, except as he said, to turn off some of the gas.
This evidence, if believed by the jury, would, in our opinion, have justified them in finding that the upsetting of the car was due to the negligence of the defendant as *Page 280 alleged in the petition, unless, of course, under other evidence in the case they found it was due to some other cause for which the defendant was not liable.
The car in question was furnished by the Republican County Central Committee of Big Horn County to the candidates for office of the Republican Party for their use in attending a political meeting. Both the defendant and the decedent were such candidates and the car was being used by them at the time of the accident for the purpose for which it was provided. These facts constituted the first ground of the motion to direct a verdict but we fail to see wherein they absolved the defendant of the duty he owed the other occupants of the car to use reasonable care while operating it. This branch of the case is, we believe, disposed of by Ryan v. Snyder, 29 Wyo. 146, 211 P. 482.
Immediately after the accident the tire on the right front wheel of the car was found deflated or flat and there was some evidence that this might have caused the defendant to lose control of the car. This evidence furnished the basis of the second ground of the motion referred to. The plaintiff, however, was entitled to have the case go to the jury on her theory as to the cause of the accident as shown by the evidence and the fact that the defendant had another theory, no matter how plausible under the evidence, was no ground for taking the case from the jury.
There was sufficient evidence, if believed by the jury to warrant a finding that the proximate cause of the death of the decedent was the injury received by him in the upsetting of the automobile.
We are satisfied that the case should have been submitted to the jury.
For the reasons above given the judgment of the lower court will be reversed and the case remanded for a new trial.
Reversed and Remanded.
TIDBALL, District Judge, concurs. *Page 281