Baldwin v. Mittry

• Decision Date: 07 May 1940
• Docket Number: 6708
• Citation: 61 Idaho 427,102 P.2d 643
• Parties: RALPH J. BALDWIN, Respondent, v. F. K. MITTRY and O. K. MITTRY, and the IDAHO GARAGE, a Co-partnership Consisting of F. K. MITTRY and O. K. MITTRY, Appellants
• Court: Idaho Supreme Court

102 P.2d 643

61 Idaho 427

RALPH J. BALDWIN, Respondent, v. F. K. MITTRY and O. K. MITTRY, and the IDAHO GARAGE, a Co-partnership Consisting of F. K. MITTRY and O. K. MITTRY, Appellants

No. 6708

Supreme Court of Idaho

May 7, 1940

AUTOMOBILES-INJURY FROM OPERATION-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY-DAMAGES-EVIDENCE-APPEAL-ERROR NOT PRESUMED-BURDEN OF SHOWING.

1. Contributory negligence is generally a question of fact for jury, and never a question of law unless the facts alleged or proven are susceptible of no other interpretation than that conduct of injured party caused or contributed to his injury and that he did not act as a reasonably prudent person would have acted under the circumstances.

2. A motorist is not required to have automobile under such control as to be able to stop within range of lights even if vision is shortened by storm or other conditions.

3. In motorist's action against owner of wrecker with which automobile collided while wrecker was parked diagonally across highway and engaged in extricating another automobile from borrow pit, evidence held to make jury question on issue of motorist's contributory negligence in view of alleged poor visibility and failure to place warning flares.

4. Evidence of the reasonable value of repairs to a damaged automobile is admissible to show difference in its value before and after injury.

5. An appellant cannot complain of testimony that has been stricken from the record.

6. Alleged error in permitting one not a party to be called for cross-examination was not prejudicial where much, if not all the material matters testified to by such witness were in substance elicited from other witnesses, and other matters sought to be proven by him were admitted by counsel. (I. C A., sec. 16-1206.)

7. Error is never presumed on appeal, and appellant has burden of showing error affirmatively, since appellate court need not search the records for possible errors.

Appeal from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Isaac McDougall, Presiding Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Otto E. McCutcheon and Anderson, Bowen & Anderson, for Appellants.

It is contributory negligence as a matter of law for one to fail to see what is plainly visible, and in failing to see an object upon the highway. (Mason v. C. Lewis Lavine, Inc., 302 Pa. 472, 153 A. 754; Ranstrom v. Oregon Short Line R. Co., 18 F.Supp. 256; Whiffin v. Union P. R. Co., 60 Idaho 141, 89 P.2d 540; Allan et ux v. Oregon Short Line R. Co., 60 Idaho 267, 90 P.2d 707; Simrell v. Echenbach, 303 Pa. 156, 154 A. 369.)

It is negligence to drive an automobile without having the lights so as to make a person discernible two hundred feet on the highway, as required by statute. (I. C. A., secs. 48-503, 48-504, 48-545, 48-547; Ranstrom v. Oregon Short Line R. Co., supra; Kormos v. Cleveland Retail Credit Men's Co., 131 Ohio St. 471, 3 N.E.2d 427; Haines v. Carroll, 126 Kan. 408, 267 P. 986.)

Kenneth S. MacKenzie, for Respondent.

"When the minds of reasonable men might differ, or when different conclusions might be reached by different minds, the question as to the existence of negligence and contributory negligence, is a question for the jury," and only becomes a question of law, authorizing a nonsuit or instructed verdict when the evidence is susceptible of no other reasonable conclusion than that the conduct of the injured party contributed to his injury, and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances. (Nelson v. Inland Motor Freight Co., 60 Idaho 443, 92 P.2d 790; Allan et ux. v. Oregon Short Line R. Co., 60 Idaho 267, 90 P.2d 707; Bennett v. Deaton, 57 Idaho 752, 68 P.2d 895; Donovan v. Boise City, 41 Idaho 324, 171 P. 670.)

"Evidence of reasonable value of repairs is admissible to show value of automobile after injury." (Murphy v. Hawthorne, 117 Ore. 319, 244 P. 79, 44 A. L. R. 1397; Nichols' Applied Evidence, vol. 1, p. 630, sec. 35a.)

"In an action by the owner of an automobile against a defendant for damages to the automobile in a collision, exclusion of evidence of the cost of repairs and the price brought by the automobile at a sale after being repaired, was error." (Nichols' Applied Evidence, vol. 1, p. 360, sec. 35; Madden v. Nippon Auto Co., 119 Wash. 618, 206 P. 569.)

BUDGE, J. Ailshie, C. J., and Morgan and Holden, JJ., concur. Givens, J., dissents.

OPINION

BUDGE, J.

The evening of December 22d about 11:30 respondent in a Ford V8 left Blackfoot intending to go to Rigby. Approximately one mile south of Idaho Falls on the Yellowstone Highway respondent collided with a wrecker of appellants which was parked diagonally across the highway from east to west engaged in extricating an automobile, the Gray car, from the east borrow pit. This action for damages was instituted by respondent. During the trial appellants moved for a nonsuit and a directed verdict, both of which were denied and the case went to the jury and a verdict was rendered in favor of respondent for $ 750. Thereafter appellants moved for a new trial or judgment notwithstanding the verdict, which motions were denied, and this appeal was then taken from the judgment and the order denying the motion for new trial.

The main question presented is raised by assignments of error numbered eleven to sixteen inclusive which urge insufficiency of the evidence and error in refusing and denying the motions for nonsuit, directed verdict, new trial, and judgment notwithstanding the verdict. The position taken by appellants is that they were not negligent and that respondent was guilty of contributory negligence as a matter of law which contributed as a proximate cause to respondent's injury in that he failed to see that which was plainly visible and in failing to see an object upon the highway. The question thus is whether there was, or was not, sufficient evidence of contributory negligence to warrant the court in taking the case from the jury. The evidence submitted is in many instances contradictory. It is disclosed that the wrecker of appellants was parked diagonally across the highway with the front end to the northwest and with the headlights shining diagonally away from respondent as he approached from the south. There is evidence that the front wheels of the wrecker extended across the yellow center line of the highway about three feet and there is likewise evidence that the front end was one and one-half to three feet east of the center line and that its rear wheels were on the east shoulder. The Gray car in the borrow pit to the east of the highway had its headlights pointing to the north and there is evidence that the battery of the Gray car had been weakened by repeated attempts to start the motor. Testimony with reference to atmospheric conditions and the degree of visibility was likewise contradictory. Some witnesses stated it was stormy, snowy and sleety and snow was drifting across the highway and visibility was only about thirty feet. On the other hand there is testimony the night was clear and visibility was practically unlimited. There is testimony that in addition to the headlights upon the wrecker and the Gray car burning at the time of the accident that the wrecker also had a spot-light which was shining upon the Gray car in the borrow pit and there were several red and green lights on the cab of the wrecker visible from the south, and there is evidence that Mrs. Gray took a two celled-flashlight and ran down the road some thirty-five or more feet and attempted to flag the approaching car of respondent without any perceptible effect. It appears unquestioned that appellants had placed no warning flares upon the highway. Respondent's testimony was to the effect that he did not see the wrecker or the Gray car or any of the lights as he looked directly down the road, and that he was approximately thirty feet from the wrecker when he first saw it when suddenly "it loomed up" and that he saw no one attempting to flag him. He stated that owing to the stormy night, slick pavement and poor visibility respondent proceeded cautiously at a speed of twenty to twenty-five miles an hour and again there is testimony to the effect that his speed was greater, as high as fifty miles an hour. Respondent testified the lights on his car were in good condition, burning brightly and under normal conditions he could see 220 feet; that his windshield was clean and was equipped with a sander to keep it free from frost. The rule announced by this court in numerous cases is that contributory negligence is generally a question of fact for the jury and never one of law unless the facts alleged in the complaint, or proven, are susceptible of no other interpretation than that the conduct of the injured party caused or contributed to his injury, and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances. (Stanger v. Hunter, 49 Idaho 723, 291 P. 1060; Adkins v. Zalasky, 59 Idaho 292, 81 P.2d 1090; Allan et ux. v. Oregon Short Line R. Co., 60 Idaho 267, 90 P.2d 707; Nelson v. Inland Motor Freight Co., 60 Idaho 443, 92 P.2d 790; Smith v. Oregon Short Line R. R. Co., 32 Idaho 695, 187 P. 539; Donovan v. Boise City, 31 Idaho 324, 171 P. 670; Williamson v. Neitzel, 45 Idaho 39, 260 P. 689; Testo v. Oregon-Wash. R. R. & Nav. Co., 34 Idaho 765, 203 P. 1065; Bressan v. Herrick, 35 Idaho 217, 205 P. 555; American Jurisprudence, vol. 5, sec. 420, p. 745; Bennett v. Deaton, 57 Idaho 752, 68 P.2d 895.)

Appellants contend in effect that respondent was guilty of contributory negligence...