Bradbury v. Voge

• Decision Date: 17 November 1969
• Docket Number: No. 10430,10430
• Citation: 93 Idaho 360,461 P.2d 255
• Parties: John William BRADBURY and Patricia A. Bradbury, husband and wife, Plaintiffs-Appellants, v. Nephi M. VOGE, Emil Voge and Wilma Voge, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 255

461 P.2d 255

93 Idaho 360

John William BRADBURY and Patricia A. Bradbury, husband and wife, Plaintiffs-Appellants, v. Nephi M. VOGE, Emil Voge and Wilma Voge, Defendants-Respondents.

No. 10430.

Supreme Court of Idaho.

Nov. 17, 1969.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for appellants.

Petersen, Moss & Olsen, Idaho Falls, for respondents.

SHEPARD, Justice.

This case involves a collision between a motorcycle driven by plaintiff-appellant John Bradbury and the automobile driven by defendant-respondent Nephi Voge. Summary judgment was entered by the district court in favor of defendants on the basis that Bradbury was driving his vehicle on the left side of the highway while traversing an intersection and that such constituted a violation of statute and hence contributory negligence. We affirm the action of the district court.

Since no trial has taken place, all evidentiary matters come to this Court by way of deposition and/or affidavit. John Bradbury received severe permanent injuries in the collision and has never recovered consciousness. His testimony is, therefore, unavailable.

Nephi M. Voge, driver of the automobile, and his parents, who were the owners and passengers, are all defendants and respondents in this action. On June 30, 1968, they were en route to church driving easterly along U.S. Highway 26 east of Idaho Falls. The testimony of the automobile driver is that he was searching for the intersection of Milo Road and U.S. Highway 26, and consequently was driving very slowly when he observed a sign designating the Milo Road intersection approximately 200 feet prior to the intersection. He switched on his left turn indicator light. He was traveling approximately five miles per hour when he began his left turn onto Milo Road. He testified that although he looked in his rearview mirror, he did not see the motorcycle or its rider. As the Voge automobile began its left turn and was approximately four feet north of the center line, it was struck on the left front fender by the motorcycle also driven in an easterly direction by Bradbury. The Voge automobile was damaged extensively and the motorcycle landed in a field north of the highway.

The accident happened at 7:35 P.M. The weather was clear, the road dry and visibility was not impaired. The intersection was well marked by signs and was clearly visible for considerable distance.

An independent eye witness was a passenger in the rear seat of an oncoming car which was traveling westward on U.S. Highway 26 and which turned right onto Milo Road just prior to the collision. That witness testified that the left turn signal on the Voge car was not operating until the Voge vehicle reached a point 50 feet before the intersection. At that point the automobile in which the witness was riding turned to the right. That witness also failed to see the motorcycle operated by Bradbury. When the witness returned to the accident scene immediately after the collision, the left turn signal of the Voge automobile was operating.

This action was filed against the defendants-respondents alleging the negligence of the driver of the Voge automobile in failing to signal and give warning of his impending left turn. No responsive pleading was filed by defendants-respondents, but they moved for summary judgment which was granted by the trial court. That court found the plaintiff-appellant to be contributorily negligent as a matter of law in operating his vehicle on the left side of a highway while traversing an intersection in violation of I.C. § 49-713. From a denial of a motion to set aside that summary judgment plaintiffs-appellants appeal.

Appellants first assign error in the trial court in sustaining a motion for summary judgment absent a responsive pleading by defendants. I.R.C.P. 56(b) provides:

'A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.'

I.R.C.P. 56(b) is identical to the same numbered Federal rule. It is our opinion that a responsive pleading need not necessarily be filed before a movant may seek summary judgment. 6 Moore's Federal Practice, § 56.08, and cases cited therein.

It is obvious from the above recited facts that there is conflicting evidence regarding the indication of an intended left turn by the driver of the automobile. This Court has consistently held that on a motion for summary judgment all doubts are resolved against the moving party and all evidence must be liberally construed in favor of the party opposing the motion. Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962). At this juncture of the case, we may, therefore, assume for the purposes of discussion that the defendant-respondent driver of the automobile was guilty of negligence in failing to indicate an intention to make a left turn as is required by statute.

Regardless of the negligence on the part of the defendant-respondent, if the plaintiff is shown to be contributorily negligent, such is a bar to his recovery. Plaintiff-appellant calls our attention to the presumption of due care which attaches to one who was killed in an accident or sustained such injuries as to be unable to testify. Geist v. Moore, 58 Idaho 149, 70 P.2d 403 (1937); Department of Finance of State v. Union Pacific Railroad Co., 61 Idaho 484, 104 P.2d 1110 (1940); Larsen v. Jerome Cooperative Creamery, 76 Idaho 439, 283 P.2d 1096 (1955); Haman v. Prudential Insurance Co. of America, 91 Idaho 19, 415 P.2d 305 (1966). In the case at bar the plaintiff-appellant who was riding the motorcycle has sustained such injuries as to be unable to communicate in any way and we may, therefore, concede that in the absence of any controverting evidence the presumption of due care on the part of the motorcycle rider would be sufficient to carry him past a motion for summary judgment or a non-suit at the conclusion of plaintiffs' case at trial. Such, however, is not the case here. There is direct uncontroverted evidence that the plaintiff motorcycle rider was operating his vehicle on the left side of the center line of the highway while traversing an intersection at the time the collision occurred. Such conduct is in violation of I.C. § 49-713, which provides in pertinent part:

'(a) No vehicle shall at any time be driven to the left side of the roadway under the following conditions: * * * (2) When approaching within 100 feet of or traversing any intersection * *.'

Violation of I.C. § 49-713 constitutes negligence per se. Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963).

We are, therefore, faced with a situation involving a presumption of due care, together with positive evidence of a lack of due care. We believe the later and better reasoned Idaho cases set forth the desirable rule in such circumstances. For example Larsen v. Jerome Cooperative Creamery, supra, at p. 445, 283 P.2d at p. 1100, states:

'Such presumption is given the effect of prima facie evidence unless satisfactorily rebutted or a fact contrary to the presumption is proven.'

In Ineas v. Union Pacific Railroad Co., 72 Idaho 390, 405, 241 P.2d 1178, 1189 (1952), the court stated:

'The fourth proposition of law is that if there is positive evidence which conclusively contradicts the presumption of due care and caution which applies to a person killed, and by thus showing the person has not exercised such due care and caution, it not only overcomes the presumption, but prevents recovery by the deceased's representatives.'

Appellants rely heavily upon the case of Haman v. Prudential Insurance Co. of America, supra. That case was an action on an insurance policy with a defense of suicide. An instruction was given explaining the presumption of due care and the instinct for preservation of one's own life and that instruction was assigned as error. This Court approved the instruction. There was no testimony whatsoever in that case by any eye witness concerning the actions of the decedent. In that respect Haman is distinguishable from the case at bar in that it has been conclusively established here that the plaintiff-appellant motorcycle rider was operating his vehicle on the left side of the road while traversing an intersection.

Appellants argue that Bale v. Perryman, supra, establishes an exception to the above-stated rule that violation of a statute enacted for the protection of motorists constitutes negligence per se and is a bar to a plaintiff's recovery. That case does indeed stand for that principle. Bale v. Perryman, supra, at p. 443, 380 P.2d at p. 505, states:

'Such circumstances may generally be classified in four categories: (1) Anything that would make compliance with the statute impossible; (2) Anything over which the driver has no control which places his car in a position violative of the statute; (3) An emergency not of the driver's own making by reason of which he fails to obey the statute; (4) An excuse specifically provided by statute.'

This Court in the recent case of Petersen v. Parry, 92 Idaho 647, 653, 448 P.2d 653 (1968), had for consideration facts showing a head-on collision between two cars and the death of all occupants therein. It was established that one of the vehicles was being driven on the left or wrong side of the highway in violation of statute. In response to an argument that the operator of that vehicle was entitled to a presumption of due care, the court said:

'There is no question but what R2's vehicle was being driven substantially upon the left (instead of the right) half of the roadway at the time of the collision, and therefore R2 was in violation of I.C. § 49-708; for the evidence does not disclose that such driving by R2 came within any of the exceptions provided in this statute. Such violation constitutes negligence per se by R2. (citation omitted) The evidence discloses no circumstances which would furnish an...