Allen v. Idaho Power Co.

• Decision Date: 15 March 1962
• Docket Number: No. 8973,8973
• Citation: 372 P.2d 80,84 Idaho 309
• Parties: Harry F. ALLEN and Margaret Allen, Husband and Wife, Plaintiffs, Cross-Defendants, Respondents, v. IDAHO POWER COMPANY, A Maine Corporation, Defendant, Cross-Complainant, and Domingo Arego, Defendant, Appellants.
• Court: Idaho Supreme Court

Page 80

372 P.2d 80

84 Idaho 309

Harry F. ALLEN and Margaret Allen, Husband and Wife, Plaintiffs, Cross-Defendants, Respondents, v. IDAHO POWER COMPANY, A Maine Corporation, Defendant, Cross-Complainant, and Domingo Arego, Defendant, Appellants.

No. 8973.

Supreme Court of Idaho.

March 15, 1962.

As Modified on Denial of Rehearing June 6, 1962.

James E. Bruce, Boise, Harold L. Ryan, Weiser, for appellants.

Donart & Donart, Weiser, Charles R. Donaldson, Boise, Norris & Welch, Payette, for respondents.

SMITH, Chief Justice.

This is an appeal from a judgment awarding personal injury and property damages to respondents growing out of a motor vehicle collision.

The collision occurred on a curved portion of a twenty-foot wide, oil surfaced highway, constructed around a hill so as to by-pass Payette. Respondents on their way to Weiser were driving their 1958 Ford station wagon along this curve. At that time appellant Arego, an employee of appellant Idaho Power Company, was driving the company's 1944 Mack 12-ton motor truck in the opposite direction on such portion of the highway, along the curve, when the two vehicles collided. Personal injuries which both respondents thereby suffered, together with damage to their car, precipitated this litigation.

Respondents in their complaint allege that appellant Arego, at the time and place of the collision, was driving the truck on his left-hand side of the highway, in respondents' lane of travel, and that Arego failed to turn the truck into his own right-hand lane in order to avoid the collision.

Appellants, by answer, alleged that the collision was caused by respondents in driving their vehicle on their left-hand side of the highway along the curve; that they were speeding and failed to observe the truck then being driven in its proper traffic lane.

The cause was tried without a jury. In its findings of fact the trial court set out that it was unable to determine on which side of the center of the highway the collision occurred; that appellant Arego had the last clear chance to avoid the collision, when he first observed respondents' approaching vehicle, by either stopping the truck, or turning it onto a side road which intersected the highway at the point of collision.

The court then concluded that respondents' injuries were caused by the negligence of Arego, 'who had the last clear chance to have avoided the collision,' and thereupon entered judgment in favor of respondents, which resulted in the appeal.

Appellants by appropriate assignments present the issue whether the trial court erred in finding that appellant Arego had the last clear chance to avoid the accident, and in concluding that his negligence, in failing to exercise the last clear chance, constituted the proximate cause of respondents' injuries and damages. Appellants, by further assignments, contend that the evidence fails to support the finding that Arego had sufficient opportunity to have avoided the accident.

Respondents' evidence shows that respondents, traveling at the approximate rate of 35 miles per hour, saw appellants' truck about 120 feet ahead, traveling toward respondents in their traffic lane; that respondent Mr. Allen, driver of the station wagon, applied his brakes and that then the Allen car skidded, leaving skid marks for about 50 feet.

Appellant Arego testified that he was driving the Mack truck at about 20 or 25 miles per hour on his right-hand side of the curve, approaching the vicinity of Hughes Drive, which is a side road leading onto the highway, near the crest of the curve; that he saw respondents' car approaching on his, Arego's, side of the highway; that when he saw the approaching car he tried to turn the truck to the right but managed only to get the wheels turned straight from their previous left turning position (traveling around the curve), when the collision occurred.

The trial court found that respondents were traveling at a speed not exceeding 35 miles per hour, and Arego approximately 20 miles per hour; but found nothing as regards the distance within which the parties observed each other; nor where on the highway the vehicles collided; but found that Arego was guilty of negligence in not availing himself of the last clear chance to avoid the accident.

The necessary requirements of a finding of negligence if it is to be based on the doctrine of last clear chance are discussed in Pilmer v. Boise Traction Co., 14 Idaho 327, 94 P. 432, 15 L.R.A.,N.S., 254, wherein this Court adopted the reasoning and the definition of the doctrine of last clear chance as enunciated in Grand Trunk R. Co. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485, cited and quoted in Pilmer v. Boise Traction Co., 14 Idaho at p. 344, 94 P. at p. 437:

'Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained, if the proximate...