Brown v. Graham

• Citation: 112 P.2d 485,62 Idaho 388
• Decision Date: 24 January 1941
• Docket Number: 6823
• Parties: REX BROWN and CLARA BROWN, husband and wife, Respondents, v. ROBERT H. GRAHAM and CLIFFORD HARRIS, Appellants
• Court: United States State Supreme Court of Idaho

112 P.2d 485

62 Idaho 388

REX BROWN and CLARA BROWN, husband and wife, Respondents, v. ROBERT H. GRAHAM and CLIFFORD HARRIS, Appellants

No. 6823

Supreme Court of Idaho

January 24, 1941

ON REHEARING APRIL 29, 1941.

WITNESSES-NON-RESPONSIVE ANSWERS-ATTORNEYS AT LAW-MISCONDUCT OF-EVIDENCE-REBUTTAL-TRIALS-DIRECTED VERDICTS-CONTRIBUTORY NEGLIGENCE-HIGHWAYS-TRAFFIC LAWS-TRAFFIC DIRECTION DEVICES-INSTRUCTIONS TO JURIES-PRESUMPTION OF DUE CARE-DOCTRINE OF LAST CLEAR CHANCE-CHILDREN-DEGREE OF CARE TO PROTECT-DAMAGES-PLEADING.

1. Where witnesses in action for death of child struck by truck at intersection were not agreed on the matter of which side of the truck the child was on, and no witness testified that he had seen the actual impact, affidavits of nonresident witnesses who saw transaction from an entirely different angle and had an unobstructed view stating that child ran directly into left side of cab of truck did not contain merely "cumulative evidence," and the trial judge abused his discretion in denying a new trial for "newly discovered evidence."

2. In action for death of child struck by truck at intersection instruction that where there are witnesses, if the evidence against the presumption that the person killed was using due care is clear, convincing and uncontradicted, the evidence will prevail as a matter of law against the presumption was erroneous, since it is not the law that in order to overcome a presumption of law, the evidence must be clear, convincing and uncontradicted.

3. Though evidence which is clear, convincing and uncontradicted will prevail as a matter of law over the presumption that a person killed was using due care, it is not the law that in order to overcome a presumption of law, the evidence must be clear, convincing and uncontradicted.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. To question as to what witness observed about speed of a truck he answered, "There was nothing unusual about the truck." An order sustaining motion to strike, because answer was not responsive to question, was not erroneous.

II. Remark by counsel for plaintiff, in argument during trial of a motor vehicle accident case, to effect that neither counsel in case, insurance adjusters, nor anybody else, furnish copies of statements made by prospective witnesses, was not suggestive that indemnity insurance had been procured to protect defendant from liability for accident, and denial of order of mistrial, based on such remark, was not erroneous.

III. Appellants, having introduced testimony of experts experienced in handling trucks, to effect that, assuming facts stated in questions to be true, driver of truck involved in accident, had made a good stop, are not in position to urge error was committed in permitting respondents to introduce testimony of like experts to contrary, in rebuttal.

IV. On motion for directed verdict in favor of defendant, evidence must be construed in light most favorable to plaintiff. It is only when it is clear plaintiff should not recover, on any view of all evidence, that motion for directed verdict in favor of defendant should be granted.

V. Question of contributory negligence is for jury, and never one of law, unless facts alleged in complaint, or proved, are reasonably susceptible of no other interpretation than that conduct of injured party caused, or contributed to, his injury, and because of his negligence, he did not act as a reasonably prudent person would have done under like circumstances.

VI. I. C. A., sec. 48-504, makes it prima facie lawful, subject to certain conditions, to drive a vehicle fifteen miles an hour, when approaching within fifty feet of highway intersection, when driver does not have clear and uninterrupted view of such intersection, and of traffic on all highways entering it for two hundred feet from intersection. Facts of case made giving instruction to that effect proper.

VII. Ordinary stop sign at side of street, device called "owl's eye," affixed to pavement in center of street at intersection with highway, and "flasher light" suspended over center of intersection, are not "traffic direction devices" within meaning of I. C. A., sec. 48-518.

VIII. Appellants not in position to complain of erroneous instruction, given at their request, on ground it conflicts with another instruction.

IX. "Where there are eye-witnesses to an accidental killing, evidence which is clear, convincing, and uncontradicted will prevail as a matter of law over the presumption that the person killed was using due care, but if reasonable minds might differ as to the conclusions to be drawn from evidence opposed to the presumption, it is proper to instruct the jury as to the presumption."

X. Evidence examined and found to justify giving instruction submitting question of last clear chance to jury.

XI. Motorists must be assumed to have knowledge of use of streets, and other highways, by children, and that they frequently run on or across such thoroughfares unexpectedly. Where presence of children near highway can be observed, degree of care, commensurate with ordinary emergencies presented, must be exercised. Motorists must not assume children, of immature years, will exercise care necessary for their protection, and not expose themselves to danger.

XII. Complaint examined and found to support instruction authorizing jury, in fixing plaintiff's damages, to consider loss of services of their deceased minor child.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action for damages for death of minor child. Judgment for plaintiffs. Reversed and remanded with direction to grant a new trial.

Judgment and order reversed with direction. A new trial granted.

H. J. Hull, for Appellants.

It is reversible error for counsel unnecessarily and intentionally to inject the insurance element into an action for damages. This is true whether it is done directly or by innuendo, so long as it raises the inference or suggestion that defendants carried indemnity insurance. (Curtis v. Ficken, 52 Idaho 426, 16 P.2d 977; Blue Bar Taxicab & Transfer Co. v. Hudspeth, (Ariz.) 216 P. 246; International Co. v. Clark, (Md.) 127 A. 647; Sherwood v. Babcock, (Mich.) 175 N.W. 470; Leon v. Blaustein, 189 N.Y.S. 78.)

Expert testimony is admissible only where the subject matter is complicated and embraces matters not of common knowledge. The mere fact that witnesses may be more skilled or experienced than the jurors does not of itself justify expert testimony. (Goodrich v. May, (Ore.) 255 P. 464; Johnson v. Peairs, (Cal.) 3 P.2d 617.)

Where instructions given are in irreconcilable conflict on a decisive or controlling question to be determined by the jury, reversal of the judgment must necessarily follow. (Draper v. City of Burley, 53 Idaho 530, 26 P.2d 128; State v. Bowker, 40 Idaho 74, 231 P. 706; Detroit Fire & Marine Ins. Co. v. Sargent, 42 Idaho 369, 246 P. 311; Portneuf-Marsh Valley Irrigation Co. v. Portneuf Irrigation Co., 19 Idaho 483, 114 P. 19; Craig v. Village of Meridian, 56 Idaho 220, 52 P.2d 145.)

Where it appears on motion for new trial based upon newly discovered evidence that (1) the newly discovered evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching; it is the duty of the trial court to grant a new trial, and refusing to do so is an abuse of the court's discretion. (Livestock Credit Corp. v. Corbitt, 53 Idaho 190, 22 P.2d 874; Friedman Bay Co. v. F. E. Baldwin Co., 57 Idaho 607, 68 P.2d 43.)

Before instructions on the Doctrine of Last Clear Chance become permissible, it must appear that the plaintiff was in a position of danger long enough before hand to have enabled the defendant to stop, or take other steps reasonably calculated to avoid the accident, and that by the exercise of reasonable care he could have done so. (Blashfield Cyc. of Automobile Law & Practice, vol. 10, sec. 6754, p. 633; Branson v. N. P. Ry. Co., 55 Idaho 220, 41 P. 629; Geist v. Moore, 58 P. 149, 70 P.2d 403.)

T. P. Wormward, Chas. E. Horning and F. C. Keane, for Respondents.

Improper statement by counsel made in response to that of other counsel is no ground for reversal. (Warfield Natural Gas Co. v. Clark's, (Ky.) 79 S.W.2d 21; Big Ledge Copper Co. v. Dedrick, (Ariz.) 185 P. 825; Bean v. Kindseder, (Kan.) 139 P. 1024; Cranford v. O'Shea, (Wash.) 134 P. 486.)

Where the opinion of expert witnesses is elicited, the opposing party cannot be precluded from rebutting such testimony by witnesses whose experience and knowledge show them equally qualified to express an opinion thereon. (Shawnee Gas and Electric Co. v. Griffith, (Okla.) 222 P. 235; King v. Hahn, 40 Idaho 555.)

A party cannot be heard to complain of an instruction more favorable to him than that to which he is entitled. (A. J. Knollin Co. v. Jones, 7 Idaho 466; Saccamonno v. Great Northern Railway Co., 30 Idaho 513; Meir-Nandorf v. Milner, 34 Idaho 396.)

Newly discovered evidence that is merely cumulative and designed to contradict witnesses is not sufficient to warrant a new trial. (Hall v. Jensen, 14 Idaho 165; Younie v. Sheek, 44 Idaho 767; Flannagan v. Newberg, 1 Idaho 78.)

MORGAN, J. Budge, C. J., and Givens, Holden and Ailshie, JJ., concur.

OPINION

MORGAN, J.

--This action was commenced by respondents against appellants to recover damages for the death of their daughter, Joyce Brown between seven and eight years old, caused by the alleged...