Bale v. Perryman
| Decision Date | 26 March 1963 |
| Docket Number | No. 9202,9202 |
| 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. |
| Court | Idaho Supreme Court |
Smith & Miller, Caldwell, for appellants.
Gigray & Boyd, Caldwell, for respondent
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 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 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:
'
'
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.
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 statutory duty constitutes negligence, negligence as a matter of law, or, according to the decisions on the question, negligence per se, for the reason that nonobservance of what the legislature has prescribed as a suitable precaution is failure to observe that care which an ordinarily prudent man would observe, and, when the state regards certain acts as so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a breach of duty with respect to those who may be injured thereby; or, as it has been otherwise expressed, when the standard of care is fixed by law, failure to conform to such standard is negligence.'
Respondent argues that this Court has always qualified the rule mentioned in the foregoing cited cases by stating that the violation could be explained by showing that the conduct in question was excusable or justifiable and such as might reasonably have been expected from a person of ordinary prudence. In support of such contention respondent cites Howard v. Missman, 81 Idaho 82, 337 P.2d 592 and State ex rel. McKinney v. Richardson, supra. We adhere to the rule announced in said cases but the so-called qualifying portion of the rule has no application in the instant case. Respondent was in no imminent danger before undertaking to pass, nor was it done to avoid collision. The only explanation respondent gave for undertaking to pass the truck was 'I assumed he was going on straight.' He had driven on this particular road 'quite a lot' and knew the intersection was there but did not see it on the day of the accident because he 'didn't pay any attention to it.'
Appellants do not complain of the trial court's finding that Perryman was negligent and there is no issue as regards agency. In this respect the court found:
'(12) That defendant turned to the left without warning at the intersection;'
'(16) That defendant might have turned on his signal light to signal a left turn but that his lighting system was inoperative and no signal was given;
'(17) That defendant did not attempt in any other way to signal following cars as to his intention to make a turn;'
These findings are supported by the record.
Appellants do contend that the court erred when it failed to rule as a matter of law that respondent was guilty of contributory negligence by attempting to pass appellant's truck in violation of I.C. § 49-713, which provides:
'Further limitations on driving to left of center of roadway.--(a) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:
* * *
* * *
Respondent admits that he saw appellant's truck enter upon the road from the driveway; that the truck proceeded southerly along the road at a slow rate of speed. He further testified that he reduced his speed to 30 miles per hour; that the truck never went...
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Alegria v. Payonk
...of criminal statutes similar to the ones raised here give rise to cause of actions sounding in negligence per se. Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963) (violation of statute prescribing rules of operation of motor vehicles constitutes negligence per se) Carron v. Guido, 54 Ida......
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...or justification for the negligence presumed to arise on the proof of violation of such a statute. This principle is set out in Bale v. Perryman, 85 Idaho 435, on page 443, 380 P.2d 501, on page 505, as 'It must be recognized that certain circumstances furnish an excuse or justification for......
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