Adkins v. Ed Zalasky

• Decision Date: 29 July 1938
• Docket Number: 6539
• Parties: BERNICE ADKINS, Appellant, v. ED ZALASKY and the WASHINGTON CUT GLASS COMPANY, INC., Respondents
• Court: Idaho Supreme Court

81 P.2d 1090

59 Idaho 292

BERNICE ADKINS, Appellant, v. ED ZALASKY and the WASHINGTON CUT GLASS COMPANY, INC., Respondents

No. 6539

Supreme Court of Idaho

July 29, 1938

PLEADING-DEMURRER TO COMPLAINT-GROUNDS-AUTOMOBILES-NEGLIGENCE-DAMAGES FOR PERSONAL INJURY-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

1. A demurrer could not be interposed to allegation of damages contained in one paragraph of the complaint, since statute does not authorize a demurrer to an item or fragment of a complaint. (I. C. A., sec. 5-607.)

2. In action for injuries sustained when pedestrian, who had alighted from bus, proceeded to cross highway at rear of bus and was struck by defendants' automobile which approached from front of bus, complaint was not demurrable as being ambiguous, unintelligible, and uncertain.

3. In negligence action, question whether plaintiff's complaint shows facts constituting contributory negligence which would defeat plaintiff's action is properly presented by a demurrer which asserts that complaint does not state facts sufficient to constitute a cause of action. (I. C. A., sec 5-816.)

4. The question of negligence or of contributory negligence is generally one for the jury. (I. C. A., sec. 5-816.)

5. Where the facts alleged in the complaint or proven by plaintiff's evidence are reasonably susceptible of no other interpretation than that the conduct of the plaintiff caused or contributed to his injury and that because of plaintiff's negligence plaintiff did not act as a reasonably prudent person would have acted under like circumstances, question of contributory negligence is not for jury. (I. C. A., sec. 5-816.)

6. In pedestrian's action for injuries sustained when pedestrian alighted from bus, proceeded around rear end of bus and across highway, and was struck by defendants' automobile, which approached from front of bus, allegations of complaint held to support application of doctrine of last clear chance, even if pedestrian were contributorily negligent.

7. In pedestrian's action for injuries sustained when pedestrian alighted from bus, proceeded around rear end of bus and across highway, and was struck by defendants' automobile, which ap- proached from front of bus, allegations of complaint held to state a cause of action as against demurrer based on theory that complaint showed pedestrian to be contributorily negligent. (I. C. A., sec 5-816.)

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action for damages for personal injuries. Judgment for defendants. Reversed.

Judgment reversed with direction. Costs awarded to appellant.

J. Ward Arney, for Appellant.

"Pedestrians have a right to use a highway, and one driving an automobile should use such care in passing pedestrians as a reasonably prudent person would use under all the circumstances. " (Carpenter v. McKissick, 37 Idaho 729, 217 P. 1025.)

Recovery was sustained in a recent Idaho case under an almost identical state of facts, from which it must be concluded that the instant complaint states facts sufficient to constitute a cause of action and raises a question of relative negligence for the determination of a jury, and not to be disposed of by the court at this juncture as a matter of law. (Bennett v. Deaton, 57 Idaho 752, 68 P.2d 895.)

Whitla & Knudson, for Respondents.

Plaintiff guilty of contributory negligence as an absolute rule of law.

Where as in this case, the plaintiff has offered no excuse whatever for not seeing the car which she now admits was there, to such an extent that she ran into the side thereof, it stands out boldly upon the face of the complaint that she was guilty of negligence as a matter of law and can be taken advantage of by demurrer.

"Contributory negligence may be a question of both law and fact or a question of law or of fact alone. Where it is a question of fact, it must be submitted to a jury and proven as a defense but where it appears on the face of the complaint, it becomes one of law and may be taken advantage of by demurrer."

Goure v. Storey, 17 Idaho 352, 105 P. 794. In the opinion on page 360 the court said:

"Under the decisions of this court and the statute, Sec. 4221, Rev. Codes, contributory negligence is a defense to be pleaded and proven by the defendant. . . . while that is the law in this state, it does not alter the rule that where the complaint itself shows that the negligence of the plaintiff was one of the contributing causes of the injury or the proximate cause of the injury, plaintiff cannot recover."

Smith v. Oregon S. L. R. Co., 47 Idaho 604, 277 P. 570, where the court said:

"Although contributory negligence is matter of defense, where it appears on the face of complaint that plaintiffs' own negligence has contributed to injury, it may be urged by general demurrer."

MORGAN, J. Holden, C. J., Budge and Givens, JJ., concur. Ailshie, J., did not sit with the court at the hearing nor participate in the decision.

OPINION

MORGAN, J.

This action is for damages for personal injuries sustained by appellant, who was plaintiff in the district court, by being struck by an automobile driven by respondent, Zalasky in the course of his employment by respondent, Washington Cut Glass Company, Inc. A demurrer to the amended complaint was sustained; appellant refused to further plead and judgment of dismissal was entered, from which this appeal was taken.

The amended complaint shows appellant was 20 years old at the time of her injury; that on or about April 24, 1937, at about 4:45 P. M., she was a passenger on a stage, traveling in an easterly direction on U.S. Highway No. 10, toward the intersection thereof with McGuire's Road; that the highway runs east and west and McGuire's Road runs north and south; that the highway, at said point, and for many miles on either side thereof was paved with concrete, at least 18 feet wide, and was plainly marked in the center thereof with a yellow stripe approximately 4 inches wide; that on either side of the pavement there were shoulders, well packed and graveled, permitting the operation of motor vehicles thereon; that at the point of intersection with the highway McGuire's Road was well surfaced and fanned out to meet the pavement and was available for automobile traffic thereon; that at said time and place the sun was shining and the view was unobstructed between respondent Zalasky and the stage and appellant; that there was no other vehicle, or other obstruction, on the highway within 400 or 500 feet of the intersection, or on either side thereof; that for 600 or 700 feet on the east of the intersection, and for approximately a mile west thereof, said highway is without curvature and is in a straight line; that the stage was stopped after crossing the intersection, on the east side thereof and on the south side of the pavement, with the right-hand wheels of the stage off the pavement, and appellant was discharged as a passenger therefrom; that the stage was approximately 8 feet wide, over all, 8 feet high and 20 feet long; that upon alighting from the stage, appellant walked along the south side of it, on the shoulder of the highway to the back and westerly end of the stage, on to the concrete pavement, thence in a northerly direction to cross the pavement; that after she passed the northerly side of the stage, at the end thereof, she looked to her left and to the west, observing that no other car was approaching from that direction within 400 or 500 feet and proceeded to the center stripe of the pavement where, as she stepped across the center stripe, and before she had crossed more than a foot in distance to the north of it, she was struck by the left and front and southern side of the car, which was being operated along the highway toward the west by respondent, Zalasky, with such force and violence that she was thrown into the air at a height of about 3 or 4 feet above the radiator of the car and was hurled to the pavement and, solely therefrom, sustained injuries and damages in the amended complaint set forth.

The amended complaint further shows that the car was being operated at a rate of speed, which appellant was advised and believed and therefore stated to be, between forty and forty-five miles per hour, with the south side thereof within a foot of the center stripe of the pavement; that respondent, Zalasky, had an unobstructed view of the stage and of appellant, she being a pedestrian on the highway and in the intersection, and gave no warning signal, and made no effort to avoid striking her, after seeing her, or being in a position, by the exercise of due care, to have seen her in a place of peril. The amended complaint also states the injuries which appellant suffered, and her loss and damage by reason thereof including attacks of headache, dizziness and nervous symptoms. It is further stated in the amended complaint:

"That the negligent acts of the defendants, as herein alleged, were the sole and proximate cause of the injuries and damages to the plaintiff, and that said negligent acts consisted in:

"(1). That the defendant driver was operating the motor vehicle of defendant owner in the course of the employment of the defendant driver with the defendant owner at said time and place at a rate of speed in excess of 35 miles per hour, and at a rate of speed, which plaintiff is advised and believes and therefore states to have been at 40 to 45 miles per hour.

"(2). That the defendant driver was operating the car of the defendant owner in the course of said employment of the defendant driver by the defendant owner in approaching and passing said stage without giving any warning signal whatsoever of the approach of the car of defendants, when said d...