Maier v. Minidoka County Motor Co.

• Decision Date: 20 September 1940
• Docket Number: 6697
• Citation: 105 P.2d 1076,61 Idaho 642
• Parties: JOHN MAIER and CAROLINE MAIER, Respondents, v. MINIDOKA COUNTY MOTOR COMPANY, a Corporation, and THOMAS MAST, Appellants
• Court: Idaho Supreme Court

105 P.2d 1076

61 Idaho 642

JOHN MAIER and CAROLINE MAIER, Respondents, v. MINIDOKA COUNTY MOTOR COMPANY, a Corporation, and THOMAS MAST, Appellants

No. 6697

Supreme Court of Idaho

September 20, 1940

AUTOMOBILES-COLLISION-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-PROXIMATE CAUSE-QUESTIONS FOR JURY-INTOXICATION-CONDITION FOLLOWING ACCIDENT-EVIDENCE OF OWNERSHIP OF AUTOMOBILE-DRIVER'S AGENCY.

1. In action for death of minor who was riding on bar of bicycle operated by another, evidence that motorist approached bicycle on highway in country at night at a high rate of speed and was blinded by lights of approaching traffic for a distance of at least 250 feet and continued to drive thus blinded until automobile struck bicycle, which motorist did not see until only six feet away and which he then was unable to recognize, was for jury on issue of motorist's negligence.

2. Generally, it is negligence as a matter of law, or at least strong evidence of negligence, for a motorist to operate his automobile on a highway at such a speed that the automobile cannot be stopped within the distance within which objects can be seen ahead of the automobile.

3. A person driving an automobile at night must proceed at such rate of speed that he may be able ordinarily to stop short of an object appearing in the radius of his lights, and he must see an object that an ordinarily prudent driver under like circumstances would have seen.

4. "Contributory negligence" which will bar recovery is established only when it is shown that, at the time of or before the injury, the person injured was guilty of a failure to exercise ordinary care for his own protection and that such failure was a proximate and contributing cause of the injury.

5. One traveling on highway on bicycle at night without a lighted headlamp was not guilty of contributory negligence as a matter of law, and, to bar recovery against negligent motorist whose automobile struck bicycle from rear, failure to carry the lighted headlamp was required to be a proximate cause of the accident.

6. In action for death of minor who was riding on highway in country at night on bar of bicycle which was operated by another and which had no lighted headlamp, where bicycle had a reflectorized tail-light which was visible at night from an automobile at a distance of 170 feet and driver of automobile which struck bicycle from rear was blinded by approaching headlights for a distance of at least 250 feet and until he was within six feet of bicycle, causal connection between the fact that bicycle had no headlamp and, likewise, the fact that two people were traveling on bicycle, and the accident was for jury on issue of contributory negligence.

7. Bicyclist was entitled to use of highway in conformity with rules of road as prescribed for all vehicles and was not required to use only the shoulder of the highway, and whether traveling on bicycle at night within 14 inches of right-hand edge of surfaced portion of highway was contributory negligence so as to bar recovery against motorist whose automobile struck bicycle from rear was for jury.

8. In action for death of minor who was riding on bar of bicycle struck by automobile, the fact of remoteness in point of time of evidence that at hospital, from one to two and one-half hours after the accident, witnesses detected odor of intoxicating liquor on motorist's breath, went to the weight of the evidence, which was a matter for jury, and did not affect admissibility of the testimony.

9. The registration in defendant's name of the license numbers displayed on automobile which was driven by another and which injured plaintiff's decedent makes out a prima facie case of ownership of the automobile in defendant.

10. In action for death of minor who was riding on bar of bicycle struck by automobile which bore dealer's license plates registered in defendant's name, evidence as to alleged sale of the automobile was insufficient to rebut as a matter of law the presumption based on the license plates of ownership in defendant, and questions of defendant's ownership and of driver's agency were for jury.

11. The mere fact of ownership of automobile which caused plaintiff's injury, regardless of the presence or absence of the owner in the automobile at the time of the accident establishes a prima facie case against the owner on the basis of the presumption that the negligent driver is the agent of the owner.

12. The refusal to give appellants' requested instructions would not be considered on appeal although assigned as error, where the assignments were not argued and no authorities were cited and the points involved were for the main part considered under other assignments of error.

13. In action for death of bicyclist struck by automobile, where defendant in whose name automobile's license plates were registered contended that the driver owned the automobile and evidence did not show that driver had made application for certificate of title, giving of instruction stating provisions of statute making it duty of owner of motor vehicle to make application for certificate of title was proper, as against contention that jury could interpret violation of such statute as being negligence referred to in another instruction relating to negligence consisting in the violation of a statute, such as the law of the road governing one's conduct. (I. C. A., sec. 48-403.)

14. Where two persons ride upon a bicycle, the person not operating the bicycle may be a "guest" of the operator, and, if such person is a guest, negligence of the operator will not be imputed to the guest.

15. In action for death of minor who was riding on bar of bicycle which was operated by another and was struck by automobile evidence that minor was riding with the operator of the bicycle for minor's own pleasure warranted plaintiffs' instructions that, if minor was enjoying hospitality of operator of bicycle for minor's own pleasure, minor was a guest to whom operator's negligence would not be imputed.

16. In action for death of minor who was riding on highway in country at night on bicycle which had no lighted headlamp where bicycle had reflectorized tail-light and was struck from rear by automobile whose driver was blinded by approaching headlights, giving of instruction requiring jury to find causal connection between absence of headlamp and accident in order to find minor contributorily negligent was not error.

17. In action for death of minor who was riding on highway in country at night on bicycle which was struck by automobile whose driver was blinded by approaching headlights, instruction relating to duty of a motorist to drive at night at such a rate of speed that he may be able ordinarily to stop short of an object appearing within the radius of his lights did not, when considered with other instructions and in light of all the evidence, place a higher burden upon a motorist than is contemplated by law and did not constitute an unwarranted comment by court on the evidence.

APPEAL from the District Court of the Eleventh Judicial District, for Minidoka County. Hon. James W. Porter, Judge.

Action for damages for death of minor child. Judgment for respondents. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Chapman & Chapman, H. A. Baker and H. V. Creason, for Appellants.

The presumption which arises from the fact that a motor vehicle, at the time of an accident, bears dealer's license plates registered in the name of one other than the operator, that such operator was the agent, employee, or servant of the person in whose name the dealer's license plates were registered, or was acting within the scope of his employment, is not available and is entirely destroyed by direct contradictory evidence that the operator of such motor vehicle was the actual owner thereof. (Joslin v. Idaho Times Pub. Co., 56 Idaho 242, 53 P.2d 323; Magee v. Hargrove Motor Co., 50 Idaho 442, 296 P. 774; annotation 66 A. L. R. 1532, at 1536; Monaghan v. Standard Motor Co., 96 Mont. 165, 29 P.2d 378, at p. 380; sec. 6066, vol. 9, Blashfield's Cyc. of Automobile Law and Practice, p. 378; Fahey v. Madden, 56 Cal.App. 593, 206 P. 128.)

Where direct uncontradicted evidence establishes that the operator of a motor vehicle, at the time of the accident, did not have the odor of intoxicating liquor on his breath, nor had been drinking the same, testimony to the effect that the odor of intoxicating liquor had been detected on his breath some hour or two hours following the accident, is not in conflict with or contradictory to, nor does it rebut the established fact that such operator of a motor vehicle was absolutely sober and had not been drinking at the time the accident occurred. (Vol. 9, Blashfield's Cyc. Automobile Law and Practice, Perm. Ed., sec. 6176, p. 475; Kackley v. Central Ill. Traction Co., 201 Ill.App. 164; Stuart v. McVey, 59 Idaho 740, 87 P.2d 446.)

Where two persons are riding on a bicycle, the person not pedaling the bicycle is not a guest, and any negligence committed in the operation of such bicycle is imputed to both of the riders. (45 C. J., Negligence, sec. 586, p. 1029; vol. 5, Berry Law of Automobiles, 7th ed. sec. 5.143, p. 191; Bryant v. Pacific Elec. R. Co., 74 Cal. 737, 164 P. 385; Robison v. Oregon-Washington R. & Nav. Co., 90 Ore. 490, 176 P. 594; Pence v. Kansas City Laundry Service Co., 332 Mo. 930. 59 S.W.2d 633 at 636, 637.)

S. T. Lowe and H. B. Redford, for Respondents.

The fact that a bicycle struck by an automobile did not carry a front light thereby violating the statute, would not preclude recovery for the death of the bicyclist because of contributory negligence, unless such violation was a proximate cause of the injury. (Tendoy v. West, 51 Idaho 679, 9 P.2d 1026; ...