Elliott v. Lee
| Decision Date | 06 April 1951 |
| Docket Number | No. 7627,7627 |
| Citation | 71 Idaho 242,229 P.2d 1000 |
| Parties | ELLIOTT et ux. v. LEE et ux. |
| Court | Idaho Supreme Court |
Welker & Daniel, Payette, Donart & Donart, Weiser, for appellant.
Merrill & Merrill, Pocatello, Frank H. Joseph, Weiser, for respondent.
Appellants, husband and wife, because of marital community, as plaintiffs sued defendants for like reason and on the theory, undisputed, that Mrs. Lee was her husband's agent in driving his automobile, for an intersection collision alleging Mrs. Lee's detailed negligence was the proximate cause of the ensuing damage to Mrs. Elliott, which was a fractured third metacarpal bone in her right hand and bodily bruises, and for damages to appellants' car.
Respondents denied any negligence on the part of Mrs. Lee and affirmatively charged Mrs. Elliott with contributory negligence. The jury rendered a verdict for respondents with this addenda: 'due to lack of evidence.' The trial court denied appellants' motion for a new trial. Appellants' assignments of error are in substance but two: the court's refusal to give their requested instruction No. 1 1 and in instructing on contributory negligence, appellants contending there was no evidence thereof.
Mr. and Mrs. Elliott and Mrs. Lee were the only eye-witnesses of the actual collision of the automobiles. Some of the other witnesses heard the noise of the impact, but arrived at the scene of the accident after the collision.
Mrs. Elliott testified that about five o'clock in the afternoon of March 4, 1949, she was driving easterly on West Idaho Street in Weiser in appellants' automobile at about seven to ten miles per hour, when about 35 to 40 feet west of the intersection of West Idaho Street and 4th Street West--which extends roughly north and south, neither being a through street--she saw Mrs. Lee driving her automobile south on 4th Street West about 50 to 60 feet from the intersection, faster than Mrs. Elliott was driving her car. Mrs. Elliott slowed down, shifted into second gear, but did not stop. Mrs. Lee did stop. Mrs. Elliott then proceeded on through the intersection. Mrs. Lee immediately started a left-hand turn into the intersection and the cars collided past the intersection, almost on the east crosswalk on the south or Mrs. Elliott's right-hand side. Mrs. Lee got out of the car and said: Then Mrs. Elliott detailed her injuries, treatment and prolongation of her disability, further elucidating on cross examination that the accident occurred completely through the intersection at the east cross line; that the front bumper and right fender of the Lee car hit the fender and front end of the radiator of the Elliott car; that before the police arrived she had pulled her car about five feet back from where the cars stopped after the collision.
Mr. Elliott, who evidently was standing a little east of the eastern crosswalk of the two Streets involved, waiting for his wife to come and pick him up, testified he saw both cars coming from their respective directions; that Mrs. Elliott slowed down intending to pick him up; the Lee car stopped, his wife's car continued on; the Lee car started up, took a turn and collided into the left front fender of the Elliott car; that Mrs. Lee said: 'I did not see the other car as the sun blinded me.' That when his wife tried to pull the cars apart, she could not, the Lee car's bumper being under the fender and into the frame of the Elliott car and back of the wheel in front of the left side of the Elliott car; that the left front fender, the grill and the wheel of the Elliott car were so out of line it could not be steered and the right front fender of the Lee car was damaged. At the time of the impact, the Lee car was curving toward the left on the east side of the street; the two cars came together where the east sidewalk crossed in line with the corner.
Mrs. Lee testified that as she approached West Idaho Street, she looked to the right and left and stopped there, then went directly through to the highway; that she did not see any car approaching; that the sun was right in her eyes; that after proceeding into the intersection, she suddenly saw the Elliott automobile, applied her brakes and pulled to the left, but too late to avoid a collision; that the front bumpers and front fenders of the two automobiles came together; that it was not a head-on collision, but side to side; that when the two cars came to a stop, they were practically in the intersection; that when the police arrived Mrs. Elliott had backed her car a little to the west and the cars were then completely separated; that before entering the intersection, she had not intended to turn to the left and, therefore, gave no signal of such intention; that she did not see the Elliott car because the sun was in her eyes and she did not have any idea there was a car near at the time; that she drove very slowly into the intersection; that she looked both to the right and then to the left and she told the witnesses she was blinded by the sun; she did not remember saying it was her fault; that she proceeded into the intersection after she had stopped her car.
Mr. C. Van Buskirk testified he heard Mrs. Lee say: 'I stopped, but I went on and could not see for the sun and it was my fault.'
Mr. Harry Moffatt testified he heard Mrs. Lee say the sun was shining in her eyes and she could not see. Mrs. Elsie Bower testified she heard Mrs. Lee say she did not see the other car on account of the sun.
We have held it is not error to refuse to give an instruction which contains in whole or in part a statement of or comment on the effect or the weight of evidence. State v. Cosler, 39 Idaho 519 at page 526, 228 P. 277; Quillin v. Colquhoun, 42 Idaho 522, 247 P. 740; Albrethson v. Carey Valley Reservoir Co., 67 Idaho 529 at page 538, 186 P.2d 853. On...
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State v. Williams
...In our view, the better practice is not to comment upon the weight or sufficiency ascribed to the inference. Cf. Elliott v. Lee, 71 Idaho 242, 229 P.2d 1000 (1951) (upholding refusal, in a civil case, to give an instruction commenting on weight or effect of A. Proposed Instructions We now t......
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...operating a motor vehicle than is required if defendant's vision is not obstructed. This instruction was extracted from Elliot v. Lee, 71 Idaho 242, 229 P.2d 1000 (1951), a case where the defendant admitted having been blinded by the sun. In this case, there is little evidence that sunlight......