Byington v. Horton

• Decision Date: 03 May 1940
• Docket Number: 6738
• Citation: 102 P.2d 652,61 Idaho 389
• Parties: HAROLD R. BYINGTON and GWEN BYINGTON, Respondents, v. JEWELL HORTON, Sr., Appellant
• Court: Idaho Supreme Court

102 P.2d 652

61 Idaho 389

HAROLD R. BYINGTON and GWEN BYINGTON, Respondents, v. JEWELL HORTON, Sr., Appellant

No. 6738

Supreme Court of Idaho

May 3, 1940

AUTOMOBILES-NEGLIGENT OPERATION-DEATH OF CHILD-DEGREE OF CARE-INSTRUCTIONS-LAST CLEAR CHANCE-QUESTIONS FOR JURY-ORDER OF TRIAL-VOIR DIRE EXAMINATION-QUESTIONS AS TO CONNECTION WITH INSURANCE COMPANY.

1. In action for death of minor struck by truck, that each juror on voir dire was asked whether he had ever been employed by or owned any stock in certain insurance company, whether any member of his family had been employed by that or any insurance company, and whether he had ever been engaged in accident insurance business, was not error where record did not disclose that questions were asked in bad faith or for purpose of emphasizing fact that defendant was protected by insurance.

2. Where wind blew a note out of hand of a five-year-old boy and he instantly started running across highway to recover note and was struck by truck, in action for boy's death instruction that it is a matter of common knowledge that children may at unexpected moments run upon or across part of thoroughfares used for vehicles, and that motorists must be assumed to have knowledge of use of thoroughfares by children, and where their presence can be observed, a degree of care commensurate with ordinary emergencies presented must be exercised, was applicable.

3. Where wind blew note out of hand of five-year-old boy and he instantly started running diagonally across highway to recover note and was struck by motorist who had seen the boy crossing highway around 90 feet in front of motorist motorist was under duty to exercise at least reasonable and ordinary care for safety of the boy.

4. In action for death of five-year-old boy struck by truck where trial court very fully and correctly instructed the jury on every material issue, refusal to give requested instructions was proper.

5. Error is never presumed on appeal, and the burden of establishing error is on the party alleging it.

6. In action for death of five-year-old boy struck by truck refusal to instruct jury on law of case prior to argument of counsel was not error where refusal was made for purpose of expediting trial by requiring counsel to argue case while instructions were being prepared. (I. C. A., sec. 7-206.)

7. Where wind blew note out of hand of five-year-old boy who instantly started running diagonally across highway to recover note and was struck by truck, in action for boy's death, whether brakes of truck were negligently inadequate and if adequate and applied, would have retarded speed of truck sufficiently to have avoided striking child, whether a sounding of the horn, warning the child, would have prevented accident, whether, if motorist had turned to his left instead of to his right or driven straight ahead, impact could have been avoided, and whether motorist had last clear chance to avoid accident, were questions for the jury.

8. Where evidence on material facts is conflicting, or where on undisputed facts reasonable and fair-minded men may differ regarding inferences to be drawn, or where different conclusions might reasonably be reached by different minds the question of negligence is one of fact for jury.

9. Where wind blew note out of hand of five-year-old boy who instantly started running diagonally across highway to recover note and was struck by truck, in action for death of the boy, permitting driver of truck to be called for cross-examination under the statute was not prejudicial error.

10. Where wind blew note out of hand of five-year-old boy who instantly started running diagonally across highway to recover note and was struck by truck, permitting the boy's father to estimate the distance between point where the accident occurred and point where truck came to a stop was not prejudicial error.

11. Where wind blew note out of hand of five-year-old boy who instantly started running diagonally across highway to recover note and was struck by truck, permitting introduction of testimony concerning a test of truck's brakes made by the sheriff and deputy immediately following accident was not prejudicial error.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Isaac McDougall, Judge.

Action for damages for wrongful death of minor child. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs awarded to respondents.

J. F. Martin, Hamer H. Budge and Merrill & Merrill, for Appellants.

Questioning of a juryman on voir dire with reference to insurance must be done in good faith and not for the purpose of advising the jury that an insurance company is interested. (Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 282 P. 72; Bressan v. Herrick, 35 Idaho 217, 205 P. 555.)

The only practical purpose in putting the question of insurance before the jury is to procure a verdict for the plaintiff and increase the size of it. (Cannon Ball Freight Lines v. Grasso, (Tex. Civ. App.) 59 S.W.2d 337.)

The doctrine of last clear chance does not apply where the driver has no opportunity to avoid the accident. (Carter v. Carraway, 18 La. App. 249, 138 So. 143; Bullis v. Ball et ux., 98 Wash. 342, 167 P. 942; Underhill v. Peterson, 110 Cal.App. 221, 293 P. 861.)

A motorist is not bound to anticipate that a child will suddenly dart in front of his car. (Berry on Automobiles, 7th ed., vol. 3, sec. 350; Stover v. Stovall, 103 Fla. 284, 137 So. 249; Haydon v. Bay City Fuel Co., 167 Wash. 212, 9 P.2d 98; Gretton v. Duncan, 238 Ky. 554, 38 S.W.2d 448; Carter v. Carraway, supra; DeNardi v. Palanca, 120 Cal.App. 371, 8 P.2d 220.)

It is the duty of the court to instruct the jury prior to argument upon request of the parties. (Sec. 7-206, I. C. A.; Schmidt v. Williams, 34 Idaho 723, 203 P. 1075.)

Anderson, Bowen & Anderson, for Respondents.

It is proper on voir dire to ask, in good faith, if prospective juror owns any stock in any casualty insurance company. (Faris v. Burroughs Adding Machine Co., 48 Idaho 310, commencing at 317, 282 P. 72; Arnold v. California-Portland Cement Co., 41 Cal.App. 420, 183 P. 171; Murphy v. Shaffer et al., 58 Cal.App. 453, 208 P. 1003, at 1004; Rinklin v. Acker, 125 A.D. 244, 109 N.Y.S. 125.)

The order of trial is in the discretion of the trial court. (Sec. 7-206, I. C. A., 1932, and cases cited thereunder; 64 C. J., sec. 62, p. 65; 33 C. J., sec. 97, p. 969; 26 R. C. L., p. 1024, sec. 24, under Trial.)

Drivers of motor vehicles owe children, old, decrepit, crippled, infirm, and drunken people greater or special care. (Parra v. Cleaver, 10 Cal.App. 168, 294 P. 6; Creerg v. D. H. Holmes Co., 16 La. App. 562, 134 So. 413; Babbitt Motor Vehicle Law, sec. 1862, p. 1350.)

In order to charge a driver with this greater or special care as to children, he must be put on notice of their presence, or the likelihood of their presence on the highway. (Messick v. Mason, 156 Va. 193, 157 S.E. 575; De Griselles v. Gans, 116 Neb. 835, 219 N.W. 235.)

A motor vehicle operator is negligent in not acting on what he saw, and also in not seeing what he could have seen by the exercise of ordinary prudence. (Bennett v. Deaton, 57 Idaho 752, 68 P.2d 895; Cervillo v. Manhattan Oil Co., 226 Mo.App. 1090, 49 S.W.2d 183; 5-6 Huddy Automobile Law, p. 74 et seq.)

The doctrine of last clear chance is clearly applicable in this case. The defendant Horton had the last clear chance to avoid this accident, and his negligence was the proximate cause of this accident. (Adkins v. Zalasky, 59 Idaho 292, 81 P.2d 1090; Flach v. Fikes, 204 Cal. 329, 267 P. 1079; Center v. Yellow Cab Co. of Los Angeles, 216 Cal. 205, 13 P.2d 918; Babbitt Motor Vehicle Law, sec. 1495.)

HOLDEN, J. Givens and Morgan, JJ., concur, AILSHIE, C. J., (Concurring Specially). Budge, J., did not sit at the hearing or participate in the decision.

OPINION

HOLDEN, J.

April 25, 1938, there was, and for several years prior thereto had been, a hard-surfaced highway 18 feet in width, running from Pocatello through the village of Alameda in a general northerly direction to Blackfoot, Idaho, known as U.S. Highway No. 91. And on April 25, 1938, appellant Jewell Horton, Sr., was, and for many years prior thereto had been, employed by Bannock county in the maintenance and supervision of county roads. In his work of supervising roads, Horton drove an old 1929 Chevrolet pick-up truck furnished by the county. On the last-mentioned date, and for some time prior thereto, respondents resided about a mile north of the village of Alameda on the east side of the highway.

Shortly after 1 o'clock in the afternoon of April 25, 1938, respondent Gwen Byington handed a note to her little son, William Kay Byington (about five years and two months of age). to take to a neighbor (a Mrs. Burke) living on the west side of the highway about 400 feet south of the Byington home. To reach the Burke home it was necessary for the boy to cross over to the west side of the highway and then walk south. Immediately after receiving the note from his mother the boy started on his errand. At that time appellant Horton, accompanied by one Guido, was driving north on the highway at a rate of speed variously estimated at from 15 to 20 miles per hour. A wind was blowing to the northeast. It blew the note out of the boy's hand--he instantly started running diagonally across the highway to recover the note. While so running across the highway the boy was struck by the Chevrolet truck, and, as a result of the injuries received, died in a hospital about two hours later.

May 11 1938, his parents (respondents) commenced this action to recover $ 50,252 damages alleged to have been sustained by reason of the alleged wrongful death of their son. By the...