Call v. City of Burley

• Decision Date: 29 October 1936
• Docket Number: 6287
• Citation: 62 P.2d 101,57 Idaho 58
• Parties: AARON CALL and SAMANTHA A. CALL, His Wife, Respondents, v. CITY OF BURLEY, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

62 P.2d 101

57 Idaho 58

AARON CALL and SAMANTHA A. CALL, His Wife, Respondents, v. CITY OF BURLEY, a Municipal Corporation, Appellant

No. 6287

Supreme Court of Idaho

October 29, 1936

NEGLIGENCE-AUTOMOBILES-EXCAVATION IN STREET-CONTRIBUTORY NEGLIGENCE-DIVERTED ATTENTION-INSTRUCTIONS-QUESTION FOR JURY-EVIDENCE-X-RAY PICTURES-IDENTIFICATION-PROOF OF CORRECTNESS-CHARACTER AND EXTENT OF INJURIES-TESTIMONY OF INJURED PARTY.

1. Contributory negligence in failing to see obvious danger cannot be excused because of diverted attention, unless diverted attention comes from outside source and does not originate within the mind and will of one whose attention is diverted.

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

3. Evidence whether son driving automobile and mother riding therein were contributorily negligent in failing to see ditch in street into which automobile fell held for jury, as respects municipality's liability for mother's injuries.

4. Requested instruction that motorist who could have seen defect in road had he looked, but who turned his head and failed to observe because of other conditions, was contributorily negligent, should have advised jury that some conditions justify a motorist in turning his attention from road.

5. In action for injuries sustained by occupant of automobile which ran into ditch across street, instruction that motorist who has exercised care which an ordinarily prudent person would exercise is not negligent merely because his attention is temporarily attracted from surface of road, held reversible error.

6. Instruction that motorist who ran into ditch in street was not contributorily negligent, if his attention was diverted from street to discover residence to which he was going, held reversible error.

7. In action for injuries sustained by occupant of automobile which ran into ditch across street, conflicting evidence whether ditch across street had been left open or whether it had been filled in, so that only slight depression existed, held for jury.

8. In action for injuries sustained by occupant of automobile which ran into ditch across street, requested instruction concerning municipality's duty to maintain street in reasonably safe condition, which was both argumentative and uncertain, held properly rejected.

9. X-ray picture is admissible where it is shown by competent evidence that it was taken in manner generally recognized in Roentgenography, and that it is a Roentgen photogram or X-ray shadow of object under investigation.

10. Witness identifying X-ray picture is not required to state that picture is correct representation of the object it purports to picture, or to testify to reliability and trustworthiness of X-ray skiagrams as such.

11. X-ray picture is admissible where evidence discloses that picture was taken of object under consideration by usual X-ray process, and position of body at time picture was taken.

12. Ordinarily, X-ray exhibits are of no use and should not go to jury unless they are interpreted and explained to jury by competent X-ray experts.

13. Usually, average physician and those following profession of making X-ray pictures are qualified to interpret pictures al- though being a physician does not in itself qualify one as competent interpreter of such pictures.

14. Litigant describing injuries received and their effect cannot testify as expert, although he can state his feeling as to character and extent of injuries inflicted and personal results he has experienced therefrom.

15. Extent to which litigant can be questioned as to injuries received and their effect rests largely in discretion of trial court.

16. In action against city for injuries received by occupant of automobile which ran into ditch across street, minutes of meeting of city council at which occupant's claim was discussed held not admissible.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Adam B. Barclay, Judge.

Action for damages for personal injuries. Judgment for plaintiffs. Reversed and remanded for new trial.

Reversed and remanded for a new trial. Costs awarded in favor of appellant.

Arthur C. Dunn and Merrill & Merrill, for Appellant.

Persons traveling on a public street are bound to exercise due care for their own safety while so traveling. (Osborn v. City of Mount Vernon, 197 Ill.App. 267; Jackson v. City of Jamestown, 33 N.D. 596, 157 N.W. 475; Montgomery v. City of Philadelphia, 270 Pa. 346, 113 A. 357.)

Driving an automobile along a street in broad daylight without looking ahead but looking for a house off to the side is negligence and cannot be excused on the theory of "diverted attention." (Bender v. Incorporated Town of Minden, 124 Iowa 685, 100 N.W. 352, 354; Schawe v. Leyendecker, (Tex. Civ. App.) 269 S.W. 864.)

Before an X-ray plate is admissible in evidence, it must be shown that it was taken by an experienced operator, with an approved machine in good condition, and that it fairly represents the portion of the body purporting to be the subject of the plates. (Stevens v. Illinois Central Ry. Co., 306 Ill. 370, 137 N.E. 859; Joy v. Flax, 101 N. J. L. 43, 127 A. 596; Bartlesville Zinc Co. v. Fisher, 60 Okla. 139, 159 P. 476.)

S. T. Lowe, for Respondents.

Plaintiffs were not bound to anticipate danger or be constantly on the lookout for unknown or latent obstructions or defects. (13 R. C. L., p. 472, sec. 386; 45 C. J. 946, sec. 506; Carr v. Wallace Laundry Co., 31 Idaho 266, 170 P. 107.)

Temporary forgetfulness, inattention or distraction of a known danger does not generally constitute contributory negligence. (Denton v. City of Twin Falls, 54 Idaho 35, 28 P.2d 202; Butland v. City of Caldwell, 51 Idaho 483, 6 P.2d 493; Osier v. Consumers Co., 42 Idaho 789, 248 P. 438; Griffen v. City of Lewiston, 6 Idaho 231, 55 P. 545.)

The court did not err in the admission or rejection of evidence, for A. A person injured may testify as to pain, suffering and physical condition. (Hines v. Foster, 166 Wash. 165, 6 P.2d 597; City of Denver v. Human, 9 Colo. App. 144, 47 P. 911; Jones v. Key, 54 Cal.App. 677, 202 P. 478; Latky v. Wolfe, 85 Cal.App. 332, 259 P. 470; Consolidated Kansas City Smelting & Ref. Co. v. Tinchert, 5 Kan. App. 130, 48 P. 889.) B. The court did not err in admitting in evidence, Exhibit "B," an X-ray plate for 1. An X-ray photograph of an object in controversy is admissible when verified by proof that it is a true representation. (Miller v. Dumon, 24 Wash. 648, 64 P. 804; White v. Southern Kansas Stage Lines Co., 136 Kan. 51, 12 P.2d 713, 724; Norland v. Peterson, 169 Wash. 380, 13 P.2d 483.)

AILSHIE, J. Givens, C. J., and Morgan and Holden, JJ., concur.

OPINION

AILSHIE, J.

October 14, 1934, Samantha A. Call, one of the respondents herein, and her son, Ben, were, in the day-time, traveling in their automobile down Third Street in the city of Burley. Ben was driving the car and Mrs. Call was sitting in the rear seat; they were returning some quilting frames to a Mrs. Matthews. They traveled along in an easterly direction (at the rate of 10 or 15 miles an hour) and were engaged in a controversy as to just where Mrs. Matthews lived. While attempting to determine this fact, they arrived at the intersection of the alley with Third Street, between Elba and Malta Streets. The front wheels of the automobile, as claimed by respondents, dropped into an excavation or ditch constructed by appellant across Third Street; the alleged excavation was made by the city for the laying of a water pipe and the removal of a culvert. Respondent was thrown forward, striking and cutting her head. As the back wheels dropped into the ditch, respondent fell down onto the bottom of the car, injuring her back.

On stopping the automobile Ben helped his mother up onto the back seat and looked through the window to see what had caused the accident. He observed a ditch or trench extending across the road about 18 inches wide. There were no signs or other warning of the excavation. After delivering the quilting frames, Ben drove to the Call residence about three miles southeast of Burley. On arriving at her home Mrs. Call went to bed and suffered severe pains in her head, neck and at the base of her spine. She remained in bed substantially for the greater part of three months.

February 8, 1935, this action was brought to recover damages, amounting to the sum of $ 5,281, for injuries sustained by respondent and for medical and other expenses. The cause was tried to a jury and a verdict returned against appellant in the sum of $ 500. After entry of judgment on the verdict appellant moved for a new trial. The lower court sustained respondent's objection to the motion and later modified this order on motion of respondents. This appeal is from the judgment, the order made on the motion for new trial and the amended order.

Assignments of error 1, 4, 5, 6, 8 and 9 all involve the contention that the pleadings and evidence show such contributory negligence on the part of plaintiff, Samantha Call, and her son, who was driving the car, as is sufficient, as a matter of law, to bar recovery. Special complaint is made by appellant against the action of the court in overruling its motion for nonsuit. It is contended, under the rule applied in Dale v. Jaeger, 44 Idaho 576, 258 P. 1081, that:

"When the established facts and circumstances permit only one possible conclusion to be drawn by a reasonably prudent man, it becomes a matter of law for the court's determination."

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