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Huber v. City of Casper11/5/1986
rences most favorable to Dr. Huber. This is contrary to the most fundamental appellate rules.
"* * * On appeal, we assume the evidence in favor of the successful party to be true, disregarding entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. [Citations.]" Lewis v. State, Wyo., 709 P.2d 1278, 1282 (1985).
See also, Wood v. City of Casper, Wyo., 683 P.2d 1147 (1984).
In order to reach its verdict the majority turned around the basic appellate rule just referred to. For the purposes of this case the majority effectively rewrote a basic appellate rule to read:
On appeal, we assume the evidence in favor of the convicted defendant to be true, disregarding entirely the evidence of the prosecution in conflict therewith, and give to the evidence of the convicted defendant every favorable inference which may be reasonably and fairly drawn from it.
If the proper appellate rule had been applied, the court would have accepted as true the following evidence.
After frolicking at the Moonlight Lounge for about two to two and one-half hours, appellant Dr. Emerick Huber, Sharon Hedges and Wyoming Highway Patrolman Brad Ward decided to quit the lounge and repair to Dr. Huber's office. As the threesome proceeded toward Dr. Huber's office they saw a person standing at the side of the road apparently in distress. This person was described by Patrolman Ward as a "young female girl." Good samaritan instincts welled up inside the trio, and Dr. Huber, who was driving his van, stopped to talk to the girl. I refer to this mystery woman as "the girl" because no one seems to know who she was.
The girl appeared to have sustained an injury, but did not want to go to the hospital or police station, but rather, wanted to be taken to her mother's home. A minor problem was that the girl did not know for sure where her mother lived. She told the occupants of Dr. Huber's van that if they took her to north Casper she could find her mother's house.
In any event, the girl got in the van and Dr. Huber drove to north Casper to a point near the intersection of Beech and H Streets where he parked half way on the sidewalk. Ms. Hedges was in the front passenger seat and Patrolman Ward in the back seat behind Ms. Hedges. What happened thereafter is slightly in dispute. In their testimony Sharon Hedges hedged, and Dr. Huber and Officer Ward were evasive.
According to the correct standard of review, the trial court was entitled to believe that Officer Ward and the young female girl started to get out of the van. At this juncture the occupants heard what they thought to be motorcycles coming up behind side them. Dr. Huber at no time got out of the van, and Officer Ward told him to leave. With respect to the scene of the accident Dr. Huber testified:
"Q. So you were the only one that had control of the vehicle.
"A. Correct, at all times."
A loud noise or a clattering sound was heard and a riderless motorcycle was seen sliding across the street, going past the van. At this time Ms. Hedges thought the loud noise was a collision. The motorcyclist, Mathew Keck, who hit the van, testified that as he approached it he didn't see anyone outside the van. At one time Keck told the police that "it [the van] was probably just barely moving." Keck also testified that his bike slid a little past or underneath the vehicle he struck, and when he came to rest he was about four feet from his bike. The motorcycle came to rest across the street, ahead of the va
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