Barry v. Arrow Transp. Co.
| Decision Date | 12 December 1958 |
| Docket Number | No. 8662,8662 |
| Citation | 333 P.2d 1008,80 Idaho 447 |
| Parties | Gall BARRY, Plaintiff-Respondent, v. ARROW TRANSPORTATION COMPANY, a Corporation, and Dale Simpson, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Bandelin & Cogswell, Sandpoint, for appellants.
Greene & Hunt, Sandpoint, for respondent.
On the morning of January 15, 1955, at about 3:00 a. m., plaintiff (respondent) was traveling west on U. S. highway No. 2, going from Sandpoint to Priest River. He was driving his own Pontiac automobile.
Highway maintenance equipment had pushed snow off the road into windrows at the outer edge of the shoulders. The snow remaining on the highway was hard packed, icy and covered with a light skiff of fresh snow. Its condition was described by the witnesses as 'very slippery.'
At a point just out of, and to the east of, Laclede the road dips into a hollow and rises again before entering Laclede from the east. On coming down into the hollow from the east, plaintiff lost control of his car and it went over the shoulder on the south side of the road opposite to that on which plaintiff had been traveling. It went into the borrow pit head on. As to its position when it came to rest, plaintiff testified the rear end was entirely off the road and off the shoulder. Plaintiff's witness, Forest, who pulled the car out, testified, 'I remember the back bumper would be about even with the edge of the shoulder.' Plaintiff's witness, Monaghan, state police officer, figuring from the tire marks left where the car had stood, testified that such marks 'would have put the rear of the car in the snow burn at the edge of the traveled portion of the road * * *; that would be where the snow stopped and the plowed out section began'; and that the car had stood at nearly a right angle to the road.
Upon the trial a blackboard was used, upon which the plaintiff drew a rough draft of the section of highway involved and indicated thereon the position of his car, the wrecker, and the position where he was standing when injured. Other witnesses likewise marked locations upon the blackboard and testified to the relative position of objects indicated thereon. The blackboard was not admitted in evidence and is not before us. Some of the testimony concerning physical facts illustrated thereon is unintelligible from the record before us. We have heretofore condemned such practice. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830.
Plaintiff obtained a ride back to Sandpoint. There he employed one, Wayne Forest, and his wrecker to get the car back on the road. Plaintiff rode out in the wrecker with Forest. They proceeded past the car and up the hill on the Laclede side of the hollow, where they turned back and parked the wrecker on the highway opposite the automobile. This occurred about two hours after plaintiff's car had left the road. A light snow was falling, and visibility was poor.
Upon alighting from the wrecker, with the intention of putting out flares, plaintiff and Forest heard the diesel truck and trailer, of defendant (appellant), Arrow Transportation Company, as it approached from the west. They also saw the headlights from the truck as it came over the hill.
The distance from the top of the hill where a driver could see the place where the wrecker stood in the hollow was given by two witnesses as 525 feet and 600 feet, respectively.
Plaintiff testified:
Plaintiff, standing by the road, was struck by the passing truck or trailer and knocked down into the snow in the borrow pit. He suffered injuries to the right side of his face, right index finger, right side and right leg.
The truck and trailer transport was driven by the defendant (appellant) Simpson and was loaded with gasoline. The combined weight of the outfit was 72,000 pounds and its total length, 60 feet.
Plaintiff brought this action for damages, alleging that defendant Simpson was driving the transport in excess of 55 miles per hour in the nighttime upon an icy and slippery highway and that such excessive speed prevented the driver from maintaining control of the vehicle, and was greater than was reasonable under conditions then and there existing. Excessive speed is the only negligence alleged by plaintiff on the part of defendants.
Defendants in their affirmative defense alleged contributory negligence on the part of the plaintiff in that plaintiff, seeing the lights of the truck and hearing the sound from it, knew it was a large vehicle and, instead of stepping off the highway, remained on the shoulder thereof too close to the path of the oncoming truck, and that he unlawfully left his car standing partly on the shoulder of the highway with its lights turned off.
The jury returned its verdict in favor of the plaintiff in the sum of $30,278.52, upon which judgment was entered. Thereafter, defendants moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. The motion was urged upon the grounds (1) that the verdict was excessive; (2) that there was no showing of negligence on the part of defendants; (3) that the evidence shows contributory negligence on the part of plaintiff in standing on the shoulder of the road and looking in the opposite direction to that from which the truck was approaching, and having an opportunity to remove himself from the shoulder of the road, he did not do so; (4) in allowing his automobile to remain standing on the shoulder of the roadway at night without lights; and (5) error of the court in failing to give defendants' requested instruction No. 33, as follows:
'If the Jury believes from the evidence that a witness has willfully sworn falsely on the trial as to any matter or thing material to the issues in the case, then the Jury are at liberty to disregard his entire testimony except in so far as he has been corroborated by other credible evidence or by facts and circumstances proved on the trial.'
Defendants brought this appeal from the judgment and from the order denying the aforesaid motion.
The assignments of error present the same issues as were presented to the trial court by the defendants' motion for judgment or for a new trial, and in addition error in denying the motion.
On the issue of his contributory negligence, the plaintiff testified, in addition to the testimony quoted above, that, while he waited for the truck to pass, he was not standing on the shoulder of the road, but five or six feet south from the outer edge of the shoulder and about 15 feet east of, and approximately opposite the center of, his own car. That position would place him on the opposite side of his car from that toward which the truck was approaching. He further testified that as he stood there he was looking in the opposite direction toward Sandpoint, watching the wrecker to see if the driver would get it out of the path of the truck; that he did not remember turning toward the truck, but must have done so, since he was struck on the right side; and that in passing his car the truck or trailer had creased the rear fender and trunk, leaving a mark about a half inch deep.
A written statement, made and signed by the plaintiff on the day of the accident, is contradictory of his testimony in two particulars. In that statement (defendants' exhibit No. 1) he said:
'I was on the south shoulder of the road standing in deep snow...
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