Brixey v. Craig

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

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

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 had passed, he then proceeded on to the highway immediately in front of respondents. He did not know of their presence until he got upon the highway. Appellant testified he entered the highway going easterly at an angle of forty-five degrees and at a speed of five miles per hour; that no part of his car went north of the center line of the main highway. He testified that after he got beyond the clover and on to the road he first saw respondents approaching at a distance of about eighty feet. He thought they were approaching at the rate of about forty miles per hour. Appellant immediately pulled back off the road to the south. The rear ends of the cars side-swiped and respondents' car rolled once and a half over, resulting in the damages claimed. The evidence as to what transpired the instant before the accident is very conflicting, and as is usual upon such occasions, rather indefinite. The collision was a rear side-swiping, probably due to skidding. Respondent's version, upon which he predicates negligence, is that appellant suddenly came out upon the highway at about twenty miles per hour, drove straight out past the center, turned sharply to the right and went back off the road; that when respondent first saw appellant he was only thirty or forty feet away; that respondent first put on his brakes; that he saw he did not have room in which to stop, then he tried passing appellant to the left; that he could have cleared to the left if the rear of appellant's car, due to his sharp turn, had not skidded four or five feet to the left of the center of the road. Respondent claims the collision was due to the left rear of appellant's car skidding into the right rear of his car. The heaviest impact seems to have been upon the right rear wheel of respondents' car, which was broken. Several witnesses testified that appellant, upon entering the highway drove beyond the center. Respondent's claim is that appellant came out in front of him so suddenly that he could not stop, but that he could have gotten by if the rear end of appellant's car had not skidded so far to the left of the middle of the road.

Appellant asks reversal here upon assignments claiming the record discloses contributory negligence as a matter of law. Also that there is reversible error in the record in that the trial court refused to give defendant's 15th requested instruction.

There is some question as to whether, under the facts proved by competent evidence, the short road from the south over which appellant approached the highway was a public...