Carson v. Talbot

• Decision Date: 06 October 1942
• Docket Number: 7025
• Citation: 129 P.2d 901,64 Idaho 198
• Parties: O. JACK CARSON and JESSIE CARSON, his wife, Respondents, v. LORENA TALBOT, Appellant
• Court: Idaho Supreme Court

129 P.2d 901

64 Idaho 198

O. JACK CARSON and JESSIE CARSON, his wife, Respondents, v. LORENA TALBOT, Appellant

No. 7025

Supreme Court of Idaho

October 6, 1942

AUTOMOBILES-NEGLIGENCE-QUESTION OF FACT-EVIDENCE-LAWS OF STATES-JUDGMENT-NONSUIT-DIRECTED VERDICT-EFFECT OF MOTION.

1. Where a party moves for a nonsuit, directed verdict or judgment notwithstanding the verdict, such motion admits the truth of his adversary's evidence and his adversary is entitled to the benefit of every inference favorable to him which may be drawn legitimately from any evidence before the court at the time the motion is made.

2. Gross negligence will be submitted to the jury where the facts are in dispute and also where the facts are not in dispute but reasonable men might reasonably draw different inferences from the facts.

3. Ordinarily, whether a driver of an automobile is guilty of gross negligence giving rise to liability to a guest is a "question of fact" for the jury.

4. In the absence of pleading or proof to the contrary, the statutory law of the state of Nevada, wherein a cause of action arose, is presumed to be the same as the statutory law of Idaho where action was tried.

5. Where motorist attempted to pass a pickup truck within 250 feet of the crest of a hill and collided with an oncoming car causing injuries to motorist's guests, whether driver was guilty of "gross negligence" under the Nevada guest statute was a question for the jury. (Comp. Laws, Nev., sec 4439.)

Appeal from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Action to recover damages for personal injuries. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents.

E. A Owen for appellant.

Appellant was not guilty of gross negligence as defined by the Nevada Supreme Court in construing its own guest statute, upon which statute this action is based. (Guest Statute of Nevada (F 915); Hart v. Kline, 116 P.2d 672; Trieloff v. Robb, 8 P.2d 956; 15 C. J. 741.)

The decision of the Nevada Court defining its own statute is of course conclusive upon this court, but to demonstrate that Nevada is in accord with the rulings of other states defining gross negligence, the following cases are cited: Ascher v. H. E. Friedman, Inc., et al., 110 Conn. 1, 147 A. 263; Palmer v. R. and H. Pant Co., 117 Conn. 124, 167 A. 94; Cook v. Cook, 117 Conn. 655, 166 A. 672; Ferris v. Von Mannagetta, 124 Conn. 88, 198 A. 167; Conant v. Collins (N. H.) 10 A.2d 237.

Ralph L. Albaugh and Arthur W. Holden for respondents.

Ordinarily, whether driver of automobile was guilty of gross negligence, giving rise to liability to a guest, is question of fact for jury. (Owen v. Taylor, 114 P.2d 258 (Idaho); Goodwin v. Goodwin, 43 P.2d 332 (Cal.); Meighan v. Baker, 6 P.2d 1015 (Cal.).

The statutory law of a sister state, in the absence of pleading or proof to the contrary, is presumed to be the same as the statutory law of the State of Idaho. Owen v. Taylor, 114 P.2d 258 at p. 262 (Idaho); Mason v. Pelkes, 57 Idaho 10; Maloney v. Winston Bros. Co., 18 Idaho 740; Moore v. Pooley, 17 Idaho 57.)

BUDGE, J. Givens, C. J., Morgan J., and Porter, D. J., concur. Ailshie, J., concurs in the conclusion. Holden, J., did not participate.

OPINION

BUDGE, J.

Respondents brought this action against Robert M. Talbot and appellant, Lorena Talbot, his wife, to recover damages for personal injuries sustained by respondent, Jessie Carson, wife of respondent, O. Jack Carson, while riding as a guest in an automobile owned by Robert M. Talbot and being driven at the time of the accident by appellant. Respondents' cause of action is based on alleged gross negligence, under the Nevada guest statute, [Sec. 4439, Nev. Compiled Laws, 1929 edition] as construed by the courts of that state. The cause was tried to the court and jury, resulting in a judgment against appellant, from which judgment this appeal is prosecuted.

Substantially, the salient facts are: On September 24, 1940, appellant, her daughter, Maybelle, and respondent, Jessie Carson, while en route to California in Robert M. Talbot's car, a sedan, had an accident on U.S. Highway No. 40, between Wells and Elko, Nevada. Appellant's car was preceded by a Ford pick-up truck being driven by one Floyd Jones. Respondent, Jessie Carson, testified:

"Q. And what happened when you overtook that truck?

"A. We followed it just a little way, and then there was a curve in the highway, and she speeded up and attempted to pass it, to get around it, and I cautioned her not to pass on a curve, and she didn't. She dropped back with her side of the car slightly over the white line, to give herself vision ahead so that she could see the road . . . .

"Q. And then what happened?

"A. We followed the truck along, Oh, I am not certain as to the exact distance, I should say a quarter of a mile . . . . she over on the left side of the road, or slightly on the left of the white line, not entirely over on the other side, and then she speeded up very rapidly to pass the truck again; and as she pulled out entirely in the left hand side of the highway even with the truck my vision was cleared then and I saw the other car coming. Naturally, as anybody would have done, I screamed, and tried to brace myself against the instrument board, or whatever the name of it is. And that's all I know . . . .

"Q. You remember the car coming up, I assume, in front of you?

"A. Yes, it came up the crest of the hill; I distinctly remember that.

"Q. About how fast did you drive, or did Mrs. Talbot drive, rather, on the trip?

"A. I should say around fifty; from fifty to fifty-five, perhaps."

The collision occurred when appellant, upon her second venture, speeded up very rapidly in an attempt to pass the pick-up truck, as she reached the crest of the hill. Appellant testified that she could not see the Barthol car because it was in a gulch. Witness, Lloyd Jones, who was riding in the pick-up truck at the time of the accident, testified with regard to the location and description of the gully or gulch:

"Q. . . . You say at a point about two hundred and fifty feet east of this gully or gulch cars that are in the bottom of it are concealed from the view of drivers coming from the east, coming from the east driving westerly, as Mrs. Talbot was; is that a fact?

"A. Yes; if you drove into the bottom of this gulch and stopped, and go back two hundred and fifty feet east of that brow of the hill, or the cattle crossing (sic), and sit in an ordinary automobile, the car in the gulch is out of sight.

"Q. And, as you stated, it would be out of sight for several seconds from a car?

"A. I said according to the speed of the car that was going through the gulch. If he was going five miles an hour he might be in there possibly thirty seconds or less . . .

"Q. Then, as Mrs. Talbot approached this gulch, and assuming that the Barthol car was traveling sixty miles an hour, there was a point from two hundred and fifty feet east from the gulch, as Mrs. Talbot approached it, that the Barthol car was out of sight for five seconds; is that right?

"A. Providing she was back from the top of the hill two hundred and fifty feet, yes."

Respondent, O. Jack Carson, visited the scene of the accident and testified regarding the location of the gulch or gully:

"A. We drove a car going west up at different distances from the crest of the hill, different distances from the sign, and watched other cars coming from the west, traveling east, and measured the distance from the crest of the hill that they [cars] were visible at all times down through the bottom of the gully; and we found that at two hundred feet a car--from the crest of the hill or the cattle crossing sign, a car was visible all the way through the gully if you were sitting in a car at the driver's side.

"Q. That would be, a car was visible at a point two hundred feet east of the .

"A. Cattle crossing sign.

"Q. At the crest of the hill?

"A. At the point of impact. The point--or, the pieces from the radiator grills of the cars were found directly in line with the cattle crossing sign."

There is also other evidence that the accident occurred at the crest of the hill; that the cattle crossing sign is at the crest of the hill; and that the accident occurred across from, or, as appellant testified, near the cattle crossing sign; that cars in the gulch may be seen by a person in a car at the crest of the hill or at a point two hundred feet east of the crest of the hill. Lloyd Jones, heretofore referred to, further testified:

"Q. Did you make any tests or examination to ascertain whether you could see a car in the bottom of that ravine or gully from the road on this side of the crest of the hill?

"A. Yes, sir.

"Q. What did you do?

"A. Mr. Carson and Mr. Holden and I were riding in a car, and we went out east of the hill a ways and turned around and drove back toward the hill going west, and traffic was moving along the road all the time at the time, and we kept moving up closer to this hill, until at two hundred and fifty feet from the top, or the cattle crossing sign, the brow of the hill, the top of the hill, a car was out of sight for a period of seconds.

"Q. Seconds?

"A. Seconds--Two, or three, or five, or ten seconds, according to its speed.

"Q. At how far away?

"A. At two hundred and fifty feet from the top of the hill.

"Q. All right.

"A. And we drove up then another fifty feet and stopped the car and stayed there until three or four cars passed through this gulch, and we could see the tops of those cars all the time they were in the gulch; from the time they came in sight on the west side, away ahead, a mile away, almost, until they passed our car--the car we was sitting...