Parker v. Wilson ( 1957 )

Higgins, J.,

dissenting. The evidence is plenary that the driver of the car was negligent and that that negligence proximately caused the death of both occupants. I think the evidence sufficiently indicates that Donald Wilson was the driver to require the submission of appropriate issues to the jury.

Wilson was the owner of the car. He called at her boardinghouse for Bonnie Patrick. They left together in his car between nine and ten at night on December 23, 1954. The fatal wreck occurred a few minutes after 12 that night. The evidence with respect to the wreck is fairly stated in the opinion of the Court. The question is: Which of the occupants was the driver ?

There is no evidence Miss Patrick had ever driven Wilson’s car, or even that she knew how to drive. Wilson had a broken neck, crushed chest, broken right femur, and dislocation of the left hip joint. Miss Patrick had severe facial lacerations extending across the base of her nose to her left forehead, with multiple fractures of the underlying bones, a rupture of the right eye, and an open wound extending into the front of the brain. She had no chest injuries. The lower half of the steeringwheel was bent downward.

It would seem natural and probable that the driver held on to the steeringwheel until the crash and that the body or chest of the driver would be hurled against the steeringwheel and the neck snapped. Wilson’s chest was crushed and his neck broken. Miss Patrick had only head — no chest or neck injuries. There was a dent in the instrument board near the center and blood and brown hair imbedded. Miss Patrick had brown hair. Wilson’s hair was black.

The tremendous speed of the car and the violence of its impact into the tree certainly could have reversed the positions of the driver and the passenger. I think the problem as to which was the driver and which was the passenger should be settled by a jury as an issue of fact, and not by the Court as a question of law.