Burns v. Getty

• Decision Date: 05 July 1933
• Docket Number: 5974
• Citation: 24 P.2d 31,53 Idaho 347
• Parties: JAMES W. BURNS, Respondent, v. R. L. GETTY, Appellant
• Court: Idaho Supreme Court

24 P.2d 31

53 Idaho 347

JAMES W. BURNS, Respondent, v. R. L. GETTY, Appellant

No. 5974

Supreme Court of Idaho

July 5, 1933

AUTOMOBILES - NEGLIGENCE - PLEADING-CONTRIBUTORY NEGLIGENCE-MOTIONS FOR NONSUIT AND DIRECTED VERDICT-EVIDENCE OF INSURANCE CARRIED-INSTRUCTIONS.

1. Appeal and supersedeas bonds filed by defendant held sufficient notwithstanding affidavit as to interest of insurer not shown by record.

2. Complaint alleging that defendant negligently ran truck into wagon causing runaway at dangerous speed on main street and that plaintiff in stopping horse was injured stated cause of action (I. C. A., sec. 5-816).

3. Motions for nonsuit and directed verdict are properly denied where reasonable minds might differ.

4. In action for injuries incurred in stopping runaway after wagon was struck, admission of testimony that damage to wagon was paid by insurance company held not prejudicial error where court struck out witness' answer and directed jury to disregard it.

5. Employer of driver of truck, which struck wagon causing runaway, could not complain of instruction permitting recovery by person injured in stopping horse, if runaway occurred "in such manner as to endanger lives and property."

6. Use of phrase "great rate of speed," in instruction characterizing runaway, held sufficient in absence of more explicit request.

7. Instruction complained of should be considered with other proper instructions given.

8. Instruction that defendant's negligence would be proximate cause of injury if it concurred with other causes though inaccurate, held not prejudicial in view of other instructions.

9. Defendant could not on appeal complain of court's failure to submit question whether contributory negligence appeared from plaintiff's pleadings or evidence, where defendant's request failed to cover that point.

10. Requested instructions, sufficiently covered in another instruction are properly refused.

11. Instructions should be numbered in transcript.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Black &amp Baum, for Appellant.

Plaintiff's complaint alleges and the evidence of plaintiff shows without contradiction that plaintiff was the actor and that his voluntary acts caused or contributed to the injury and that plaintiff's contributory negligence bars his recovery, as a matter of law.

While our Idaho statute states that contributory negligence is a matter of defense to be pleaded and proven by the defendant it does not alter the rule that where the complaint itself shows that the negligence of plaintiff was one of the contributing causes of the injury or was the proximate cause of the injury, or where the uncontradicted evidence introduced in plaintiff's case shows that fact, plaintiff cannot recover. (Goure v. Storey, 17 Idaho 352, 360, 105 P. 794; Rippetoe v. Feeley, 20 Idaho 619, 119 P. 465; Polly v. Oregon Short Line R. R. Co., 51 Idaho 453, 6 P.2d 478; Pipher v. Carpenter, 51 Idaho 548, 7 P.2d 589; Tendoy v. West, 51 Idaho 679, at 682, 9 P.2d 1026; Osier v. Consumers' Co., 41 Idaho 268, 232 P. 735; Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871, at 873.)

During the trial of an action for personal injuries or damages, evidence by questions propounded to witness, or by statements of counsel that defendant has been indemnified against loss by surety company, is not only inadmissible but its offer on the part of plaintiff is prejudicial misconduct.

Also nothing that court or counsel can do will cure the damaging result of such wrongful conduct. (Akin v. Lee, 206 N.Y. 20, 99 N.E. 85, Ann. Cas. 1914A, 947; Arnold v. California Portland Cement Co., 41 Cal.App. 420, 183 P. 171, at 172; Pierce v. United Gas & Elec. Co., 161 Cal. 176, 118 P. 700.)

Walter H. Anderson, for Respondent.

The rule is well established and laid down in the reported cases and authorities generally that a person who incurs danger and is injured or killed in attempting to save human life is not guilty of contributory negligence, unless his conduct is such as to amount to rashness, entailing almost certain injury. In such cases the incurring of the danger is not per se negligence, and the question of whether there was contributory negligence is ordinarily to be answered by the jury upon proof of the circumstances surrounding the attempt to rescue--such as the alarm, excitement and confusion usually present, the uncertainty as to the means to be employed, the promptness required and the liability to err in the exercise of judgment as to the best course to pursue--and great latitude of judgment must be allowed to one who is impelled by the dictates of humanity to decide and act in the face of emergencies. (American Express Co. v. Terry, 126 Md. 254, 94 A. 1026, Ann. Cas. 1917C, 650, and note; Workman v. Lincoln Tel. & Tel. Co., 102 Neb. 191, 166 N.W. 550; State v. City of Baltimore, 141 Md. 344, 118 A. 753; Manthey v. Rauenbuehler, 71 A.D. 173, 75 N.Y.S. 714, 11 Am. Neg. Cas. 304.)

The carrying of insurance is admissible on the question of business connections, ownership and employment. (Perry v. A. Paladini, Inc., 89 Cal.App. 275, 264 P. 580; Lekarczyk v. Dupre, 265 Mass. 33, 163 N.E. 642; Delamar & Allison v. Ward, 184 Ark. 82, 41 S.W.2d 760; Dullanty v. Smith, 203 Cal. 621, 265 P. 814.)

BUDGE, C. J. Holden, J., MORGAN, J., Concurring. GIVENS, J., Mr. Justice Wernette Concurring in Part and Dissenting in Part.

OPINION

BUDGE, C. J.

Sam Van, vegetable peddler, was driving a one-horse wagon in a southerly direction on North Main Street in Pocatello, when one of appellant's employees in a Ford truck, attempting to pass the wagon, struck it. Mr. Van was thrown from the wagon, and the driverless horse, still pulling the wagon, ran south on Main Street. Plaintiff saw the horse and wagon at Center Street, which intersects Main, and made a futile attempt to stop the horse; pursued the horse, and thereafter jumped on the running-board of a truck (not the one which collided with Van's wagon), which later came up even with the horse, whereupon plaintiff seized the reins and bridle-bit, and either jumped or was pulled from the truck, hanging on to and running beside the horse for some 15 or 20 feet, when a broken shaft of the wagon which was flopping up and down, tripped him, causing him to throw more weight on the horse's head as a result of which the horse slipped and fell on plaintiff, injuring him, for which he sought and was awarded damages; hence this appeal.

Respondent moves to dismiss the appeal on the grounds that there is no appeal or supersedeas bond filed in this action other than by a real party in interest, in that the United States Fidelity & Guaranty Company is the insurer of defendant, and will have to pay any judgment against him, such motion being countered by one to strike it. The only showing that the United States Fidelity & Guaranty Company is a party in interest is by affidavit of plaintiff's counsel, which is denied by affidavit of defendant. While it is not necessary to object to a void, as distinguished from a defective, bond, under I. C. A., sec. 11-203, within 20 days, it may be noted that the motion in this court to dismiss is the first objection defendant has made to the bonds. The company was not a party to the action; the judgment runs against Getty alone; and there is nothing appearing in the record showing that the company is the real party in interest. There not being a sufficient showing, the motion to dismiss the appeal is denied.

Defendant first urges that the court erred in overruling defendant's demurrer to the complaint in that it failed to allege that plaintiff was free from contributory negligence. Under I. C. A., sec. 5-816, contributory negligence is a matter of defense, and it is not necessary for plaintiff to plead or prove the negative of contributory negligence. (Goure v. Storey, 17 Idaho 352, 105 P. 794.) The complaint alleged substantially as follows: That defendant's servant negligently operated the truck in several particulars, running into the wagon and causing the horse to run away on a main street of the city; that the horse was proceeding down the street at a rapid and dangerous rate of speed, and the wagon was swerving from side to side of said street; that the street was one of the principal thoroughfares of Pocatello, lined on both sides with shops and business establishments; that at said time there were numerous and divers persons along said street, both upon the sidewalk and in vehicles along the street; that the horse running away greatly endangered the safety of persons along and upon said street, both in vehicles and upon the sidewalk, and for the purpose of stopping the horse to avoid death or injury to such persons, plaintiff was impelled to, and did, attempt to stop said horse; that as a result of seizing the horse, plaintiff was badly injured, incurred medical and hospital bills, and was unable to attend to his job on the Oregon Short Line Railroad; that the agent or employee was acting within the scope of his employment; that plaintiff's injuries were proximately caused by the negligence of defendant's servant in colliding with the wagon and causing the horse to run away.

The complaint thus stated a cause of action (20 R. C. L. pp. 132 133; 45 C. J. 966; Bond v. Baltimore & O. R. Co., 82 W.Va. 557, 96 S.E. 932, 5 A. L. R. 201; Devine v. Pfaelzer, 277 Ill. 255, 115 N.E. 126, L.R.A. 1917C 1080), where the court concedes the rule under facts similar to those herein, but states that in that case there was no evidence or any circumstances which would raise an inference that there was...