Bell v. Carlson

• Decision Date: 05 May 1954
• Docket Number: No. 7993,7993
• Citation: 75 Idaho 193,270 P.2d 420
• Parties: BELL et al. v. CARLSON et al.
• Court: Idaho Supreme Court

Page 420

270 P.2d 420

75 Idaho 193

BELL et al. v. CARLSON et al.

No. 7993.

Supreme Court of Idaho.

May 5, 1954.

Bistline & Bistline, Pocatello, for appellants.

O. R. Baum, Hugh C. Maguire, Jr., and R. Max Whittier, Pocatello, for respondents.

PORTER, Chief Justice.

By this action, appellants seek to recover for damages to the automobile of appellant Bell resulting from a collision with an automobile driven by respondent, William Carlson, and owned by his father, respondent Victor Carlson. By their complaint, appellants allege the collision was caused by the negligence of respondent, William Carlson, in the operation of the Carlson automobile. By their answer, respondents deny the allegations of the complaint and affirmatively allege that the damages were proximately contributed to and caused by the negligence of appellant Bell. The cause was tried to a jury which brought in a verdict for respondents. Appellants have appealed from the resulting judgment and from the order of the court overruling their motion for new trial.

Among other assignments of error, appellants urge the trial court erred in instructing the jury on the law of contributory negligence and in submitting such issue to the jury, on the ground that the evidence was insufficient to justify the court's action. To properly pass upon such assignment of error, it is necessary to consider the evidence in some detail.

There were only three witnesses who testified at the trial. Appellant Bell and L. D. Allred, the investigating officer, testified for appellants. Respondent, William Carlson, testified for respondents.

The collision occurred on May 16, 1949, at about the hour of noon in the City of Preston. In such city there is an intersection of two streets, to-wit: First North Street, running east and west, and First East Street, running north and south. The streets at such intersection are each 100 feet wide from property line to property line. The home of appellant Bell was located some three-quarters of a block east of such intersection. About noon on the day in question, Dr. Bell left his home and drove his 1937 Chevrolet automobile in a westerly direction along his right-hand side of First North Street. At the same time, William Carlson was driving the Carlson car south on First East Street. As to what happened at the intersection, Dr. Bell testified as follows:

'Q. And as you approached this intersection just tell the jury what happened. A. A I approached this intersection I was traveling at a low rate of speed, and as I got into the intersection I noticed the Carlson car,--it turned out to be,--approaching me at a fast rate of speed from the north. I made an attempt to stop. I did not have time to make any other maneuvers--my speed was too slow to get out of his way by advancing, and in fact I didn't have that much power. My speed was approximately right around fifteen miles per hour, or maybe just a little bit more, but very little, and I didn't have time to back out of the way or anything else. The approaching car made no effort to avoid a collision, and I was struck approximately in the center of the intersection,--I mean from east and west. The other car was traveling near the center of the road, not in the west lane.'

The car of Dr. Bell was struck on the right side on the right front fender. Dr. Bell heard respondent, William Carlson, tell the investigating officer that he was doing about 40 miles an hour.

Under cross-examination, Dr. Bell testified:

'Q. Now, you say you were going,--as I understand you to say, you were going about twenty miles an hour in the intersection? A. As I stated in my testimony it was around fifteen,--it might have been a little bit over that, but not much.

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'Q. Now, where was your car when you first saw the car being driven by Mr. Carlson? A. I was entering the intersection.

'Q. You were entering the intersection? A. That is right.

'Q. Now, how far in the intersection were you? A. Just a matter of feet. I do not know. I was in the intersection.

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'Q. Now did you look to the right before you entered the intersection? A. I did.

'Q. And could you see anything,--did you observe anything? A. You look to the right, then you look to the left, and you may look back, and by the time I looked back he was approaching there.

'Q. When you looked to the right could you see down the street? A. At that time there was a bit of shrubbery that obliterated the corner for a short distance, but by the time I reached the intersection and looked to the right the car was approaching.

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'Q. Now, how far was Mr. Carlson away from you when you first saw him? A. He was just about crossing the cross-walk, but not to the cross-walk yet.'

The witness, L. D. Allred, testified that he was a patrolman on the police force at the time in question. That he was called and arrived at the scene of the accident a few minutes after it occurred. He there talked to respondent, William Carlson, who said the Carlson car was traveling probably 35 or 40 miles an hour. He testified:

'Q. Did you observe the northerly corner there on First East? That would be the corner to his right as he was approaching the intersection. A. Yes.

'Q. And what was the condition of that corner? A. There are trees on the corner, as I recall it. On my report there I see where I have checked 'No obstructions for either driver.' Now, it might have been there were limbs haning down from those trees that would have obstructed their views for only,--for just a flash. I don't believe it would have been enough, sufficient enough, to have actually blinded them from seeing.

'Q. To your observation then, a person going down First East,--First North Street, could see to the north on First East Street, if they had looked? A. Yes.'

Respondent, William Carlson, called as a witness on behalf of respondents, testified he was sixteen years old at the time of the accident. That he had taken a friend home and was returning south on First East Street when the collision occurred. The gist of his testimony was as follows:

'Q. Now, do you know how fast you were going at the time you left your friend's house and went down to that intersection? A. No; I don't know how fast I was going.

'Q. Now, you have heard some testimony here that you were going forty miles an hour; that you made the statement you were going thirty-five or forty miles an hour. Now, what do you have to say with regard to that statement? A. Well, I didn't say how fast I was going. After the accident the officer and Doctor Bell came over to me and asked me approximately how fast I was going. They said about thirty or thirty-five, and I was,--and I said 'Yes, I did.' I was kind of shook up and didn't relaize what I was saying.

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'Q. (Mr. Maguire, continuing:) Now, as you approached the intersection did you see any cars coming from your left? A. No; I didn't.

'Q. When,--do you recall at this time looking over to the left? A. Well, it is a habit. I always do, but I don't recall whether I did or not.

'Q. Right now then you can't say for sure whether you did or not; is that right? A. No.

'Q. When did you first see Doctor Bell's automobile? A. Well, not until I got out of Dad's car and looked around at first before I even noticed I hit him.

'Q. Did you see it before the collision? A. No.

'Q. When was the first time then that you knew there was another car in the intersection? A. After it was all over with. I got out and that is when I noticed it.

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'Q. Did you make any observation, or do you have a recollection of having made an observation as to the condition of the intersection to your left as you were proceeding south on First North Street? A. Well, there were a few trees there. The limbs were hanging down quite close to the ground, but it was just for,--you couldn't see for a distance back but as you got closer you could.' (Emphasis supplied.)

From the evidence, the negligence of William Carlson is apparent; and such negligence was the proximate cause of the accident. Respondents do not seriously contend to the contrary. Respondents attempt to avoid liability for such negligence on the ground that Dr. Bell was guilty of contributory negligence which proximately contributed to the collision and to the damage of his car. The burden of proof of the affirmative defense of contributory negligence is upon the party pleading such defense, unless it appears from the evidence introduced by plaintiff. Section 5-816, I.C.; Bryant v. Hill, 45 Idaho 662, 264 P. 869; Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222; Tendoy v. West, 51 Idaho 679, 9 P.2d 1026; Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167; Madron v. McCoy, 63 Idaho 703, 126 P.2d 566; Pearson v. City of Weiser, 69 Idaho 253, 206 P.2d 264.

Also, the burden of proof is upon the defendant to show that the negligence of plaintiff, if established, was a proximate contributing cause to the injury unless the proof on behalf of plaintiff establishes it or shows facts clearly presumptive of it. Kelly v. Troy Laundry Co., supra; Madron v. McCoy, supra; Tendoy v. West, supra; Pittman v. Sather, 68 Idaho 29, 188 P.2d 600; Pearson v. City of Weiser, supra; Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430.

The mere fact of a violation of a law of the road is not contributory negligence barring recovery unless such negligence constitutes a proximate contributing cause to the injury.

In Kelly v. Troy Laundry Co., supra [46 Idaho 214, 267 P. 225], the court was considering the absence of a light on the front of a bicycle and quoted with approval from George v. McManus, 27 Cal.App. 414, 150 P. 73, as follows:

"While the failure of a person to perform a duty imposed upon him by statute is sufficient evidence of negligence on his part, nevertheless such neglect, however illegal, in the absence of evidence...