Asumendi v. Ferguson

• Decision Date: 26 February 1937
• Docket Number: 6308 and 6309
• Parties: FRANCISCO ASUMENDI, LOUISA ASTORICA, CARMEN ASTORICA, and GABRIEL ASTORICA, a Minor, LUIS ASTORICA, a Minor, and JESUS YSIDORO ASUMENDI, a Minor, by LOUISA ASTORICA, Their Guardian Ad Litem, Respondents, v. O. F. FERGUSON, Appellant, and FRANCISCO ASUMENDI, Cross-Appellant, v. O. F. FERGUSON, Appellant-Respondent
• Court: Idaho Supreme Court

65 P.2d 713

57 Idaho 450

FRANCISCO ASUMENDI, LOUISA ASTORICA, CARMEN ASTORICA, and GABRIEL ASTORICA, a Minor, LUIS ASTORICA, a Minor, and JESUS YSIDORO ASUMENDI, a Minor, by LOUISA ASTORICA, Their Guardian Ad Litem, Respondents, v. O. F. FERGUSON, Appellant, and FRANCISCO ASUMENDI, Cross-Appellant, v. O. F. FERGUSON, Appellant-Respondent

Nos. 6308 and 6309

Supreme Court of Idaho

February 26, 1937

AUTOMOBILES-PERSONAL INJURY-ACTION FOR DAMAGES-EVIDENCE-NATURE AND EXTENT OF INJURIES-RES GESTAE-SPEED-STATUTORY REGULATIONS-NEGLIGENCE PER SE-CONTRIBUTORY NEGLIGENCE-LAST CLEAR CHANCE-QUESTIONS FOR JURY-DEATH OF CHILD-DAMAGES.

1. In actions for death of mother and child hit by truck, condition and location of bodies held part of res gestae.

2. In actions for death of mother and child, jury could properly consider that if they had run into side of truck instead of being struck by front thereof they would not have been thrown in direction that they were, and would not have been so badly mangled and injured.

3. Although answers admitted death of mother and child physician's testimony describing nature and extent of injuries held properly admitted as bearing on question whether decedents ran into side of truck or were struck by front thereof, and also as bearing on contention that inadequate brakes and excessive speed of overloaded vehicle proximately caused accident, as well as defendant's avoidance of initial negligence and counter-charge that mother was contributorily negligent and that court improperly instructed on last clear chance.

4. In actions for death of mother and child, who suddenly started across highway with mother in pursuit, where it appeared that decedents, when struck, were near middle of oiled highway 18 feet wide, plus 6-foot shoulder on south side thereof whether eastbound truck driver could have driven farther to right and thereby missed decedents as well as automobile parked on south shoulder, or whether driver would have missed decedents by driving to left side held for jury.

5. In actions for death of mother and child whom mother was pursuing across highway, whether brakes were negligently inadequate in view of fact that gross weight of truck exceeded 10,000 pounds, and whether brakes, if adequate and applied, would have retarded truck more than it was, and whether such showing, if any, would have given decedents time to stop before getting in path of truck, or to go beyond it to safety, held for jury.

6. Driver of truck striking pedestrians held negligent per se in violating statute by driving over 30 miles an hour with gross load exceeding 10,000 pounds.

7. In actions against truck driver for death of mother and child aged two years and three months, whom mother was pursuing across highway, whether mother was contributorily negligent in allowing child suddenly to break away from her held for jury.

8. In actions for death of mother and child whom mother was pursuing across highway when hit by truck, instruction that statute made it prima facie lawful to drive at certain speed except in vicinity of grade crossings, schools, or obstructed intersections of highways held erroneous, in absence of allegation or proof that accident occurred near railway crossing, school, or highway intersection.

9. In actions for death of mother and child whom mother was pursuing across highway, error in giving instruction that statute made it prima facie lawful to drive at speed of 35 miles an hour except under certain conditions, which were neither alleged nor proved, held harmless, where truck driver admittedly violated another statute by driving at least 32 miles an hour with gross load exceeding 10,000 pounds.

10. Only instructions pertinent to pleading and evidence should be given.

11. Giving instruction not founded on issues will not warrant reversal where no substantial injury resulted.

12. In actions for death of mother and child, aged two years and three months, whom mother was pursuing across highway, giving instruction that child two or three years old is incapable of contributory negligence held proper, where truck driver contended that mother was contributorily negligent in allowing child suddenly to break away from her, even though driver did not rely on contributory negligence of child; it being necessary for the court fully to instruct jury on subject of contributory negligence.

13. Evidence that mother and child whom mother was pursuing across 18-foot highway were struck near middle thereof and that child was thrown about 15 feet and mother was thrown or dragged 58 1/2 feet and truck continued for about 348 feet together with physician's testimony describing nature and extent of injuries, held to raise question for jury under last clear chance doctrine.

14. Refusing instructions covered by instructions given held not error.

15. Determination of damages for wrongful death of child is peculiarly matter for jury.

16. Denying new trial sought by father on ground of inadequacy of verdict for $635 for death of child, aged two years and three months, held not such abuse of discretion or so contrary to law as to require reversal.

17. Where defendant in wrongful death action unsuccessfully appealed from judgment for plaintiff and plaintiff unsuccessfully cross-appealed from denial of new trial because of inadequacy of verdict, costs of transcript were divided between both parties equally.

18. Successful plaintiffs in wrongful death action held entitled to $40, representing costs of brief up to 40 pages, where brief contained more than 40 pages applicable to defendant's appeal, inasmuch as rules allow costs for only 40 pages of brief.

19. Costs of reply brief of defendant unsuccessfully appealing from judgment for plaintiff in wrongful death action held assessed against plaintiff who unsuccessfully cross-appealed from denial of new trial sought on ground of inadequacy of verdict.

APPEALS from the District Court of the Third Judicial District for Ada County. Hon. Chas. F. Koelsch, Judge.

Two actions for damages. One by the husband and minor children for the death of the wife and mother, No. 6308, and the other by the father for the death of the minor child, No. 6309. Judgment for plaintiffs. Appeal by defendant Ferguson from the judgment and denial of motion for new trial in No. 6308. Affirmed. Appeal by defendant Ferguson from judgment and denial of motion for new trial in No. 6309. Affirmed. Cross-appeal by father, Francisco Asumendi from refusal to grant new trial in case No. 6309. Judgment for plaintiff. Affirmed.

Affirmed.

J. F. Martin and John D. Whitney for Appellant.

The condition of the mangled bodies was not admissible to prove the speed of the truck, and where the death and the manner of death was admitted, testimony with relation to the condition of bodies was not admissible for any purpose. (Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 282 P. 72; Louisville & N. R. Co. v. Scott's Admr., 184 Ky. 319, 211 S.W. 747.)

Contributory negligence ordinarily is a defense to be pleaded and proven as a fact, but when the established facts and circumstances permit only one possible conclusion to be drawn by a reasonably prudent man, it becomes one of law for the court's determination. (Dale v. Jaeger, 44 Idaho 576, 258 P. 1081; Rowe v. Northern P. Ry. Co., 52 Idaho 649, 17 P.2d 352.)

A person injured while rescuing another who has been placed in the position of danger by the negligence of the rescuer is guilty of contributory negligence. (Atlanta & C. Air Line Ry. Co. v. Leach, 91 Ga. 419, 17 S.E. 619, 44 Am. St. 47; White v. Chicago, 120 Ill.App. 607; Brown v. Columbia Amusement Co., 91 Mont. 174, 6 P.2d 874.)

A driver of an automobile cannot be expected to anticipate the sudden appearance of a child from behind an obstructed view. (Rittle v. Zeller, 100 Pa. Super. Ct. 516.)

The giving of conflicting instructions to the jury constitutes reversible error. (Brown v. Hardin, 31 Idaho 112, 169 P. 293; Holt v. Spokane & Palouse Ry. Co., 3 Idaho 703, 35 P. 39; Detroit Fire & Marine Ins. Co. v. Sargent, 42 Idaho 369, 246 P. 311.)

No rule of law has been, or can be, laid down for a jury to follow in the awarding of damages for the death of an infant, and the jury is the sole judge of the amount of damage and the verdict will not be disturbed unless it affirmatively appears that error was committed or that the verdict was arrived at by reason of prejudice and passion. (Cox v. Northwestern Stage Co., 1 Idaho 376; Golden v. Spokane & I. E. R. R. Co., 20 Idaho 526, 118 P. 1076; Nelson v. Johnson, 41 Idaho 697, 243 P. 647; Osier v. Consumers Co., 42 Idaho 789, 248 P. 438.)

The sum of $ 635 is a substantial sum for the death of a two year old child. (Snyder v. Lake Shore, etc., 131 Mich. 418, 91 N.W. 643; Schnable v. Providence Public Market, 24 R. I. 477, 53 A. 634.)

Ralph R. Breshears and Dean Driscoll for Respondents.

The question of contributory negligence is one for the jury on facts such as are shown in this case (Secs. 48-503, 48-504, 48-603, I. C. A. 1932; sec. 48-540 and sec. 58-540-a, I. C. A. 1932, as amended by chap. 171, Idaho Session Laws, 1933; Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347.)

Evidence of the condition of the remains of the deceased is admissible. (Roy v. Oregon Short Line R. Co., 55 Idaho 404, 42 P.2d 476; Nichols on Applied Evidence, vol. 2, p. 1641, par. 55; Leahy v. Southern P. Ry. Co., 65 Cal. 150, 3 P. 622; Goodale v. Hathaway, 149 Ore. 237, 39 P.2d 678; Comstock v. Smith, 183 Wash. 94, 48 P.2d 255.)

The evidence is sufficient to sustain the verdict of the jury in the mother's case. (See cases cited under Proposition I; McCoy v. Krengel, 52 Idaho 626, 17 P.2d 547; Say v. Hodgin, 20 Idaho 64, 116 P. 410.)

The evidence is...