Bale v. Perryman, 9202

• Court: United States State Supreme Court of Idaho
• Writing for the Court: KNUDSON
• Citation: 85 Idaho 435,380 P.2d 501
• Parties: Philip G. BALE, Plaintiff-Respondent, v. Sim S. PERRYMAN and Wilder Farms, Inc., an Idaho corporation, Defendants-Appellants.
• Docket Number: No. 9202,9202
• Decision Date: 26 March 1963

Page 501

380 P.2d 501 85 Idaho 435 Philip G. BALE, Plaintiff-Respondent,
v.
Sim S. PERRYMAN and Wilder Farms, Inc., an Idaho corporation, Defendants-Appellants. No. 9202. Supreme Court of Idaho. March 26, 1963.

[85 Idaho 437]

Page 502

Smith & Miller, Caldwell, for appellants.

[85 Idaho 438] Gigray & Boyd, Caldwell, for respondent

KNUDSON, Chief Justice.

At a point approximately one and one-fourth miles westerly of Wilder, Idaho, two county roads intersect at right angles. The road extending north and south has an oiled surface approximately 24 feet in width and the other is surfaced with gravel.

At a distance of approximately 300 to 400 feet north of said intersection is a private farm driveway leading onto said oiled road from the west.

On the morning of October 23, 1959, Philip G. Bale, plaintiff-respondent, was driving his automobile in a southerly direction along the oiled county road, traveling at a speed of 40 to 50 miles per hour. Some fog existed in the area, although visibility was not substantially impaired. When respondent was approximatels 200 feet north of the driveway hereinbefore mentioned, he observed a truck, owned by defendant-appellant, Wilder Farms, Inc., then being driven by its employee, defendant-appellant Sim S. Perryman, enter the road from said driveway. The truck continued southerly along the road at a speed of between 5 and 10 miles per hour.

When respondent was approximately 100 or 150 feet from the intersection he started to pass the truck. Upon entering the intersection appellant Perryman turned the truck to the left in an attempt to travel easterly upon the intersecting road. It was at this point, i. e., in the intersection, that the collision between the vehicles then being driven by respondent and Perryman occurred.

This action was brought by respondent to recover damages in the amount of the cost of repair to his automobile. Appellants denied negligence on their part and as an affirmative defense cross-claimed for [85 Idaho 439] damages to the truck, alleging that respondent was negligent in attempting to pass at an intersection and without giving a proper passing signal. The parties stipulated that the damages alleged in the complaint and cross-complaint were reasonable, leaving only the question of liability to be determined by the court, sitting without a jury. From a judgment in favor of respondent, this appeal is taken.

Appellant contends that finding of fact No. 7, as amended, is not supported by the evidence. Said finding is as follows:

'(7) That the intersection of another county road with the one on which the parties herein were driving was visible but that the right-of-way was overgrown with brush and weeds and it

Page 503

could have been overlooked by the inattentive.'

Respondent neither testified nor contended that the intersection was overgrown with brush and weeds, or that it was in any respect obstructed from his view, nor has he called attention to any evidence that supports such finding. As concerns respondent's knowledge of the existence of the intersection, he testified as follows:

'Q. Had you driven that road before?

'A. Yes, I had, quite a lot.

'Q. Yet you said you didn't see the intersection, the other cross road; was that because of the fog, that you could not see it?

'A. No, it was on account of the truck pulled out in front of me and I just, I started to pass, wasn't looking for an intersection.

'Q. You knew the intersection was there?

'A. If I wanted to turn on it I'd known it was there, yes.

'Q. You had driven the road many times?

'A. Quite a few, yes.

'Q. So you knew the intersection was there but you didn't see it this day?

'A. That's right, I mean if I was going to turn I would see it but not turning on that road I didn't pay any attention to it.

'Q. That also is a county road, isn't it?

'A. Yes, it is.'

The court found 'that plaintiff did not see the intersection which both cars were approaching simply because he did not look for it.' We conclude that there is merit to appellant's said contention.

Under other specifications of error it is claimed that the court did not apply the correct law to the facts of the case and further that the findings and judgment are not supported by substantial evidence.

[85 Idaho 440] The salient question to be resolved concerns the issue of contributory negligence. The trial court predicated its decision upon the negligence of appellant Perryman, and upon the premise that it is the law of this state that a violation of a statute is 'simply evidence of negligence, to be considered along with other evidence by the trier of facts.'

In a broad sense such statement of the law is true, however, this Court has repeatedly held that for one to violate a positive statutory inhibition is negligence per se and not merely prima facie evidence of negligence. Brixey v. Craig, 49 Idaho 319, 288 P. 162; State ex rel. McKinney v. Richardson, 76 Idaho 9, 277 P.2d 272; Ineas v. Union Pac. R. Co., 72 Idaho 390, 241 P.2d 1178. In 65 C.J.S. Negligence § 19c, p. 418, the general rule is stated as:

'The generally accepted view is that violation of a...