Bates v. Siebrand Bros. Circus & Carnival

• Decision Date: 08 May 1951
• Docket Number: No. 7674,7674
• Citation: 231 P.2d 747,71 Idaho 318
• Court: Idaho Supreme Court
• Parties: BATES et ux. v. SIEBRAND BROS. CIRCUS & CARNIVAL et al.

Page 747

231 P.2d 747

71 Idaho 318

BATES et ux. v. SIEBRAND BROS. CIRCUS & CARNIVAL et al.

No. 7674.

Supreme Court of Idaho.

May 8, 1951.

O. R. Baum, Ben Peterson, and Darwin Brown, all of Pocatello, for appellant.

Holden & Holden and Robert V. Kidwell, all of Idaho Falls, for respondent.

TAYLOR, Justice.

On September 18, 1948, during the course of the eastern Idaho fair, the defendants were operating a 'miniature' or 'choochoo' train on the fairgrounds at Black-foot. On the afternoon of that day the plaintiff, Myrtle Alice Bates, with her husband and daughter, attended the fair. While she and her fourteen year old daughter were walking westerly along the south side of the oval track upon which the train ran, she stepped upon the track and was struck by the train as it came up behind her from the east. She suffered fractures of the malleolus of the fibula and tibia in the ankle joint and displacement of the ankle and foot.

Upon the trial the jury returned a verdict in favor of the plaintiffs in the sum of $10,000, upon which judgment was entered. Defendants' motion for new trial was thereafter heard and denied and defendants have appealed from the judgment and from the order denying a new trial. The assignments of error challenge the sufficiency of the evidence to establish negligence on the part of the defendants, and urge that the evidence shows contributory negligence on the part of Mrs. Bates. The evidence is to the effect that the track was laid upon grass that had been recently mowed, and that the rails, including the base upon which they rested, stood approximately two and one-half inches high; that the track as laid constituted an oval approximately 75 feet long by 35 feet wide; there was no fence or guard rail around it; there was a merry-go-round, rollo-plane, and other 'ride' concessions in the immediate vicinity; that some if not all of these were in operation at the time of the accident, and that they made considerable noise; that there was a large crowd on the fairgrounds and in the vicinity of these concessions; that people were moving in both directions; that they had crossed back and forth over the tracks and trampled down the grass; and that there was a considerable number of people in the immediate vicinity of the track at the time and place of the accident. There is a dispute in the evidence as to whether the horn or whistle of the engine was being blown immediately before the collision. There were approximately fifteen children riding the train and making a noise, and some of their parents were watching or walking alongside. The plaintiff and her daughter were walking along with some of the crowd moving westerly looking around, and one witness testified that there was jostling and that the plaintiff may have been crowded onto the track. The plaintiff and her daughter testified that they did not see the track or see or hear the train until the accident occurred. It may well be that any signal or noise made by the train, or the children riding it, would be muffled or blended into the noises and sounds from other concessions and the crowed to the extent that plaintiff was totally unaware of its approach, or even of its existence. From this evidence it is apparent that both the question of negligence on the part of the defendants and contributory negligence on the part of the plaintiff, were questions for the jury. The verdict thereon will not be disturbed. Allan v. Oregon Short Line R. Co., 60 Idaho 267, 90 P.2d 707; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651.

It is contended that the verdict is excessive. Mrs. Bates was at the time 39 years old, a farmer's wife, and mother of thirteen, and had previously been in good health and able to and did do her household work and helped with chores on the farm. She suffered intense pain at the time; was confined to the hospital ten days following the accident, where a cast was applied; two days in December when the first cast was removed and another applied; and three days in January when the second cast was removed and a splint applied. At that time she was sent to Salt Lake City to a specialist, where she spent three days. She was confined to her bed at home for six months, and when out of bed required the use of crutches for a year from the date of the accident. She suffered considerable pain during that time; was unable to perform her work; and required the use of a cane at the time of the trial, which began March 2, 1950. The doctor who attended her testified that at the time of the trial there was still considerable pain and swelling; that the joint mortise was not in proper alignment; that there was some calcium deposit in the joint area; that she suffered a reduction of 50% in dorsiflexion and 75% in lateral rotation of the ankle; and that the pain would continue and that the injury was permanent. The doctor who examined her for the defense testified that she had nearly complete mobility of the ankle laterally and only 20% limitation in dorsiflexion, with some pain; a moderate degree of malalignment; and that the fracture had been well reduced and was well healed. This conflict in the evidence as to the nature and extent of the injury and the pain and suffering was a matter for the jury to resolve. We are unable to say that the amount of the verdict is so excessive as to indicate passion or prejudice. This question was also presented to the trial judge as one of the grounds for a new trial, and he ruled thereon adversely to appellants. We think the record does not require a reduction in the verdict. Garrett v. Taylor, 69 Idaho 487, 210 P.2d 386; Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682; Koch v. Elkins, 71 Idaho ----, 225 P.2d 457.

Appellants assign as error a portion of the court's instruction on contributory negligence. This instruction, after calling attention to the defense of contributory negligence, states, 'I instruct you that such a defense is an affirmative defense and the burden of proving the same rests on the defendants.' It is not contended that this is an incorrect statement of the law. The complaint is that without more the jurors would be led to believe that they could not consider, on the question of contributory negligence, any evidence introduced by the plaintiff. It is true that 'contributory negligence, if shown, is...