Bryant v. Hill

• Court: Idaho Supreme Court
• Writing for the Court: BRINCK, Commissioner Per Curiam.
• Citation: Bryant v. Hill, 45 Idaho 662, 264 P. 869 (Idaho 1928)
• Decision Date: 01 March 1928
• Docket Number: 4952
• Parties: D. T. S. BRYANT, Respondent, v. ROY HILL, Appellant

264 P. 869

45 Idaho 662

D. T. S. BRYANT, Respondent, v. ROY HILL, Appellant

No. 4952

Supreme Court of Idaho

March 1, 1928

NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-LAST CLEAR CHANCE-BURDEN OF PROOF-INSTRUCTIONS.

1. If defendant knew of plaintiff's peril, even though plaintiff was negligent in putting himself into the location he did with reference to defendant's threshing-machine defendant was thereupon put to a degree of care commensurate with the then situation of the parties.

2. Though there was evidence justifying finding of contributory negligence of plaintiff in putting himself in a position of peril with reference to defendant's thresher, yet, such question and those of defendant's reasonable care under the circumstances being, under the evidence, questions for the jury, direction of verdict for defendant was properly refused.

3. Instruction that the burden of establishing contributory negligence was on defendant, without the qualification unless such negligence appears from the evidence introduced by plaintiff, was not error, as the jury could not have been misled thereby, where other instructions stated that for plaintiff to recover the jury must find that defendant's negligence was the sole and proximate cause of the accident and that, if "the evidence" showed that it would have been avoided by exercise of ordinary care by plaintiff and that he did not exercise such care, verdict should be for plaintiff, and that, if defendant's negligence was proved as a proximate cause plaintiff was entitled to recover unless plaintiff's contributory negligence shall also be established by "the evidence."

4. If defendant desired an instruction on burden of proof as to contributory negligence, embodying modification of that given, so as to cover case, where such negligence appears from the evidence introduced by plaintiff, defendant should have proposed it.

5. Defendant, having pleaded contributory negligence and introduced evidence to support the allegation, is in no position to complain of unqualified instruction that defendant has the burden of proof to establish contributory negligence.

6. Instruction requiring verdict for defendant, if plaintiff was injured when his horses were frightened on defendant turning the blower on his thresher, held properly refused, it ignoring the doctrine of last clear chance involved under the evidence.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. W. A. Babcock, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Affirmed.

Bothwell & Chapman, for Appellant.

When plaintiff's own case presents evidence which unexplained makes out prima facie contributory negligence upon his part, there must be further evidence exculpating him or he cannot recover. (Grant v. Chicago, M. & St. P. Ry. Co. (Mont.), 252 P. 385.)

While contributory negligence is purely a defensive matter and must be pleaded and proved by the defendant, plaintiff relieves defendant of such burden, if plaintiff's evidence discloses, or if it may be fairly inferred from the circumstances, that plaintiff's own negligence proximately contributed to the injuries complained of. (Louisville & N. R. Co. v. Williams, 172 Ala. 560, 55 So. 218; Virginia Iron, Coal & Coke Co. v. Perkey's Admr., 143 Va. 168, 130 S.E. 403; Florida East Coast Ry. Co. v. Geiger, 64 Fla. 282, 60 So. 753; St. Louis, I. M. & S. Ry. Co. v. Wiggam, 98 Ark. 259, 135 S.W. 889.)

An instruction advising the jury that the defendant having set up, by way of defense, contributory negligence, the burden is upon him to establish that fact by a preponderance of the evidence, without a further qualification that this burden is not upon the defendant in case such negligence appears from plaintiff's own evidence, is prejudicial error. (Denver City Tramway Co. v. Gustafason, 21 Colo. App. 478, 121 P. 1015; Texas Traction Co. v. Wiley (Tex. Civ. App.), 164 S.W. 1028.)

Porter & Witham, for Respondent.

Where the defendant is guilty of negligence and the plaintiff is guilty of contributory negligence, and there is a last clear chance on the part of the defendant to avoid the injury, then the defendant is liable, notwithstanding contributory negligence on the part of the plaintiff. (Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Anderson v. Great Northern R. Co., 15 Idaho 513, 99 P. 91.)

All instructions must be construed together and taken as a whole. (Carscallen v. Coeur d'Alene Co., 15 Idaho 444, 16 Ann. Cas. 879, 98 P. 622; Hard v. Spokane International Ry. Co., 41 Idaho 285, 238 P. 891.)

BRINCK, Commissioner. Varian and Ensign, CC., concur.

OPINION

BRINCK, Commissioner.--

Plaintiff was a farm laborer employed by one Carlson. Defendant was the owner and operator of a bean-huller, and at the time this cause of action arose was operating his machine on the farm of said Carlson, threshing beans. Plaintiff was hauling the beans from the field to the threshing-machine. The machine had just been set, and threshing not begun, when plaintiff arrived at the machine with a load of beans, and drove his team and wagon up to the separator after the engine had started. Defendant signaled for the engine to be accelerated, and it was then discovered that the blower for removing the bean straw had not been placed in position, but was lying on top of the separator, and defendant immediately began to move the blower around to its proper position. In this operation, the blower passed directly over plaintiff and his wagon and team, ejecting, with great force and noise, chaff and dust that was in it. The horses jumped, and plaintiff was thrown from his wagon to the ground, receiving injuries to recover damages for which he brings this action. The jury awarded plaintiff damages, and from judgment therefor defendant appeals.

The court refused appellant's request for an instruction directing a verdict for the defendant, and this ruling is the basis of the first assignment of error. Appellant contends that the evidence affirmatively shows that plaintiff's own negligence in driving his team next to the machine before the blower had been put in its proper place must defeat his recovery, and also contends that it is not shown that the movement of the blower caused the team to jump. As to the latter contention, the evidence was sufficient to support the theory that the noise and wind from the blower passing over the wagon and team, caused them to start up. As to plaintiff's own negligence, it is true the evidence was entirely sufficient to have justified a finding of contributory negligence; but even so, there is testimony to the effect that defendant saw plaintiff's position with reference to the machine before he commenced to turn the blower around, which would bring into operation the last clear chance doctrine. If the defendant knew of plaintiff's peril, even though plaintiff was negligent in putting himself into the location he did with reference to...