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Palmeno v. Cashen4/22/1981
This is an appeal from an August 21, 1980 judgment awarding appellee $24,814.15 for damages suffered in an automobile accident. The issues raised here involve comparative negligence, imputed negligence, the "Warning Device When Vehicle Disabled" statute, and the sufficiency of the evidence supporting the trial court's judgment.
We will affirm.
On the evening of November 11, 1978, in response to a call for wrecker assistance, appellant drove his wrecker truck to a point on Wyoming Highway 789, approximately two miles north of Lander, Wyoming, where two vehicles had driven off the northbound side of the highway during a heavy snowfall. The purpose of Mr. Palmeno's trip was to determine whether or not he could retrieve the vehicles from their positions off of the road and pull them back onto the highway if possible. He parked his south-facing truck on the northbound side of the highway, as close as he could get to the cars down in the barrow pit. However, the snow bank along the edge of the highway prevented him from completely removing his vehicle from the oncoming lane of traffic. Appellant activated his vehicle's emergency flashing lights and dimmed its headlights to low beam before leaving it to reconnoiter the automobiles off in the barrow pit.
Meanwhile, appellee was riding with her husband north on Highway 789 out of Lander towards Hudson. They were on their way there to pick up Mr. Cashen's daughter by a previous marriage for a weekend visit. Prior to their departure, appellee had expressed reservation about making the trip due to the road conditions; however, her husband allayed her fears by telling her he had just been on the roads and they were not so bad. According to appellee, her husband was driving capably as they left Lander; she noticed the speedometer indicated their speed was 35 miles per hour. Appellee also observed that the night was quite dark, and with snow continuing to fall, the roadway was snow-packed. As the Cashen car crested a hilltop, appellee saw what she believed to be oncoming headlights; in actuality, it was appellant's parked wrecker. She believed that the vehicle was on the proper side of the road until "just a matter of a second or two" before the Cashen auto hit it. Mr. Cashen died in the accident; appellee was thrown into the windshield and was severely injured. Also, the Cashen vehicle was totally destroyed.
Appellee initiated this suit on August 7, 1979, for recovery of her separate injuries and damages against appellant. The case was tried without a jury on the 8th and 9th of July, 1980. On August 21, 1980, judgment was formally entered for appellee; damages were awarded totaling $24,814.15.
Appellant's first contention appears to be that the trial judge did not comply with the Comparative Negligence Statute, § 1-1-109, W.S. 1977. However, appellant has totally failed to explain in what way the trial judge erred. Under comparative negligence law in this state, the trier of fact should find the percentage of negligence attributable to each of the actors who have proximately caused the plaintiff's injuries regardless of whether the actors have been named as parties to the lawsuit. Board of County Commissioners of the County of Campbell v. Ridenour, Wyo. 1981, 623 P.2d 1174; Cline v. Sawyer, Wyo. 1979, 600 P.2d 725; Beard v. Brown, Wyo. 1980, 616 P.2d 726. The purpose of this requirement is to accurately gauge the percentage of plaintiff's own contributory negligence, if present, which is an important finding since it will operate to reduce a plaintiff's recovery or completely preclude recovery if greater than that of each of the actors, separately determined on a one-on-one basis.
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