Brixey v. Craig, 5395

• Court: United States State Supreme Court of Idaho
• Citation: 49 Idaho 319,288 P. 152
• Docket Number: 5395
• Parties: RUTH HELEN BRIXEY and E. BRIXEY, Husband and Wife, Respondents, v. JACK CRAIG, Appellant
• Decision Date: 08 May 1930

288 P. 152

49 Idaho 319

RUTH HELEN BRIXEY and E. BRIXEY, Husband and Wife, Respondents,
v.
JACK CRAIG, Appellant

No. 5395

Supreme Court of Idaho

May 8, 1930

AUTOMOBILES-NEGLIGENCE-VIOLATION OF STATUTORY REGULATIONS-CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY.

1. Violation of positive statutory inhibition is negligence per se, and not merely prima facie evidence of negligence.

2. Approaching highway intersection where view was obstructed at speed greater than fifteen miles per hour held prima facie negligence, such speed being only prima facie unlawful (Laws 1927, chap. 260, sec. 4 (b) 3).

3. Negligence and contributory negligence in action for personal injuries and property damage resulting in automobile collision at highway intersection held for jury under evidence.

APPEAL from the District Court of the Eleventh Judicial District, for Jerome County. Hon. Hugh A. Baker, Judge.

Action in damages to recover for personal injuries and property damages. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs to respondents. Petition for rehearing denied.

Henry Hall and Hodgin & Hodgin, for Appellant.

Driving in excess of statutory speed is negligence per se, or is negligence as a matter of law. (Keller v. Breneman, 153 Wash. 208, 279 P. 588; Curoe v. Spokane etc. R. R. Co., 32 Idaho 643, 37 A. L. R. 923, 186 P. 1101; Smith v. Oregon Short Line R. R. Co., 32 Idaho 695-699, 187 P. 539; Hughes v. Hudson-Brace Motor Co., 111 Kan. 397, 207 P. 795, 21 N.C. C. A. 967, and note; Schell v. DuBois, 94 Ohio St. 93, 113 N.E. 664, L. R. A. 1917A, 710; 13 N.C. C. A. 982, and note.)

If plaintiff's negligence was the contributing cause, he cannot recover, even though defendant was negligent. (Rippetoe v. Feely, 20 Idaho 619, 637, 119 P. 465; Osier v. Consumers Co., 42 Idaho 789, 800, 248 P. 438; Daley v. Jaeger, 44 Idaho 576, 258 P. 1081; Keller v. Breneman, supra.)

James R. Bothwell and W. Orr Chapman, for Respondents.

Speed in excess of statutory limit is prima facie unlawful only, and is not negligence per se, or as a matter of law, it may be considered by the jury together with other evidence in the case upon the question of negligence. (1927 Sess. Laws, art. 2, sec. 4, chap. 260; 9 Uniform Laws Annotated, 1928 Supp. (Misc. Acts), sec. 4, p. 177; Fields v. Freeman, 177 Ark. 807, 8 S.W.2d 436; Pollock v. Hamm, 177 Ark 348, 6 S.W.2d 541; Berg v. Michell, 196 Ill.App. 509; Sturtevant v. Ouellette, 126 Me. 558, 140 A. 368; Banzshof v. Roche, 228 Mich. 36, 199 N.W. 607; Higgins v. Metzger, 101 Vt. 285, 143 A. 394.)

Contributory negligence is generally a question of fact for the jury and only becomes one of law when the evidence introduced on behalf of the plaintiff is susceptible of no other interpretation than that the conduct of the injured party contributed to his injury, and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances. (Donovan v. Boise City, 31 Idaho 324, 171 P. 670; Smith v. Oregon Short Line R. R. Co., 32 Idaho 695, 187 P. 539; McKenna v. Grunbaum, 33 Idaho 46, 190 P. 919; Testo v. Oregon-Wash. R. R. & Nav. Co., 34 Idaho 765, 203 P. 1065; Bressan v. Herrick, 35 Idaho 217, 205 P. 555.)

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION [288 P. 153]

[49 Idaho 321] MCNAUGHTON, J.

Plaintiffs, Ruth Helen Brixey and E. Brixey, instituted separate actions in damages against defendant to recover for personal injuries and damage to property alleged as resulting from an automobile collision due to defendant's negligence. Defendant denies negligence and pleads contributory negligence. The cases were consolidated by the trial judge. A verdict was returned in favor of each plaintiff, assessing Ruth Helen Brixey's damages at $ 900, and E. Brixey's damages at $ 450, together with a verdict for $ 90 for damage to plaintiffs' car. Judgment was entered accordingly, and defendant appeals. The cases here will be considered together.

Respondents, on the afternoon in question, were traveling east toward the village of Eden, and about a mile therefrom, down a hill of five per cent grade, at a rate of speed estimated by them at from twenty to twenty-five miles per hour. Appellant's estimate was much higher. Respondents were the last of three automobiles proceeding along this highway in the same direction.

The appellant approached the east and west main highway upon a short byroad (maintained for three farmers whose places were upon it) from the south. This byroad, and travelers upon it, were at the time entirely concealed from view to travelers, approaching it from the west, by a bank and rank growth of sweet clover. The byroad was not graveled but the highway had a twenty-seven foot graveled surface with shallow borrow-pits at the side. The appellant, from a distance, had observed two of these cars on the main highway and drove his car to a short distance from the intersection and stopped. Waiting until two cars...