Bell v. Joint School Dist. No. 241, 10797

• Decision Date: 14 July 1972
• Docket Number: No. 10797,10797
• Citation: 499 P.2d 323,94 Idaho 837
• Parties: Roy D. BELL and E. Alene Bell, husband and wife, Plaintiffs-Appellants, v. JOINT SCHOOL DISTRICT NO. 241 et al., Defendants-Respondents.
• Court: Idaho Supreme Court

Page 323

499 P.2d 323

94 Idaho 837

Roy D. BELL and E. Alene Bell, husband and wife, Plaintiffs-Appellants, v. JOINT SCHOOL DISTRICT NO. 241 et al., Defendants-Respondents.

No. 10797.

Supreme Court of Idaho.

July 14, 1972.

Ryan & Sweet, Weiser, for plaintiffs-appellants.

Elam, Burke, Jeppesen, Evans & Boyd, Boise, for defendants-respondents.

DONALDSON, Justice.

This negligence action was brought by the plaintiffs-appellants, Roy D. and E. Alene Bell, to recover damages for injuries sustained by Roy D. Bell in a motor vehicle accident which occurred on April 22, 1969. On that date, a 1960 Chevrolet one-half ton pickup truck in which Bell was riding as a passenger was struck by a school bus owned by the defendant school district and being driven by the defendant Terry R. Farris. The case was tried to a jury, which rendered a verdict in favor of the defendants, and the district court denied the plaintiffs' motion for judgment notwithstanding the verdict or for a new trial. On appeal, the appellants request that this case be reversed and remanded for a new trial.

The pickup truck in which Bell was riding at the time of the accident was owned by the United States Department of Agriculture and assigned to the Soil Conservation Service. It was being driven by Kenneth Schwartz, an employee of the Soil Conservation Service. Bell was Schwartz's immediate supervisor, and Schwartz had requested that Bell assist him at their intended destination. Their pickup truck and the school bus were traveling in the same direction; the accident occurred when the school but attempted to overtake the pickup, which was moving much slower than the bus. When the bus was in the process of passing, the pickup initiated a left turn and was thereupon struck by the bus. The testimony is conflicting as to whether Schwartz signaled his intention to turn left; Schwartz testified that he activated his left-turn indicator some two hundred feet before initiating the turn, but the school bus driver testified that he saw no signal whatsoever. In addition, four witnesses who were passengers on the bus also testified that no signal was given by the driver of the pickup in which Bell was riding. Schwartz testified that prior to the collision, he had observed the bus approaching rapidly from the rear.

The appellants' first assignment of error alleges that they should have been granted a new trial because there was insufficient evidence to show that Schwartz was negligent and that his negligence, if any, was a proximate cause of the accident. A jury finding will not be set aside on appeal where it is supported by substantial, competent, though conflicting, evidence. Cahill v. Logue, 93 Idaho 533, 466 P.2d 573 (1970); Bratton v. Slininger, 93 Idaho 248, 460 P.2d 383 (1969). In this case, although the evidence as to proximate cause is conflicting, there is ample support for a jury finding that the sole proximate cause of the accident was the negligence of the appellant's driver, Schwartz; by way of example, we note that the bus driver and four other witnesses testified that no signal was given before Schwartz turned left into the path of the bus.

The appellants' second assignment of error alleges that the evidence adduced at trial did not warrant giving to the jury an instruction regarding the relationship of the driver (Schwartz) to his passenger, (Bell). In this regard, the appellants' third assignment more specifically alleges that the court's instruction No. 14, ¹ relating to the doctrine of joint venture, was inappropriate where, as here, the driver and passenger were fellow servants employed by a governmental agency. The record indicates, however, that the appellants also requested an instruction ² relating to the question of joint venture. Having done so, the appellants are in no position to complain now that such could not be an issue where the driver and passenger are coemployees. Hansen v. Howard O. Miller, Inc., 93 Idaho 314, 460 P.2d 739 (1969); Bratton v. Slininger, supra; Fawcett v. Irby, 92 Idaho 48, 436 P.2d 714 (1968); Black v. Theo Hamm Brewing Co., 78 Idaho 498, 305 P.2d 1085 (1957); Puget Sound Nat. Bank v. C. B. Lauch Const. Co., 73 Idaho 68, 245 P.2d 800 (1952).

The appellants also contend that the trial court erred in giving its instruction No. 15, reading as follows:

'You are further instructed that although the right of control over the driver is not sufficient by itself to justify an application of the doctrine of imputed negligence, it is a factor to be considered with all other circumstances in determining whether the plaintiff was guilty of independent contributory negligence which would bar recovery.

'In other words, the negligence, if any, of the driver Kenneth Schwartz, would become a factor in the instant case if you determine that Roy D. Bell had supervisory authority only over Kenneth Schwartz and that he failed properly to supervise or direct the driver Kenneth Schwartz after he has a reasonable opportunity to see or to know that the driver was operating the pickup without due regard for the safety of others and that plaintiff was negligent in failing to exercise his authority or acquiesced or cooperated in the act complained of.'

The appellants claim that this instruction is erroneous because no evidence was adduced at trial to show that Bell knew or had reason to know of Schwartz's negligence, if any, and because Bell's supervisory powr was not such as to require him to act affirmatively to control the driving of the vehicle. On appeal from a jury verdict, we must view the evidence in the light most favorable to the respondent and least favorable to the appellant. Cahill v. Logue, supra; Christensen v. Stuchlik, 91 Idaho 504, 427 P.2d 278 (1967). Doing so, we find the evidence sufficient to support a jury finding that Bell had a reasonable opportunity to discover that Schwartz was operating the vehicle in a negligent manner. The record discloses that Bell knew where Schwartz was planning to turn; the testimony also indicates that if Schwartz failed to signal, this would have been observable to Bell. The jury could have concluded that Bell should have noticed that Schwartz, although planning to turn, was...