Chatterton v. Pocatello Post

• Decision Date: 29 September 1950
• Docket Number: No. 7656,7656
• Citation: 223 P.2d 389,20 A.L.R.2d 783,70 Idaho 480
• Parties: , 20 A.L.R.2d 783 CHATTERTON et al. v. POCATELLO POST.
• Court: Idaho Supreme Court

Page 389

223 P.2d 389

70 Idaho 480, 20 A.L.R.2d 783

CHATTERTON et al. v. POCATELLO POST.

No. 7656.

Supreme Court of Idaho.

Sept. 29, 1950.

Rehearing Denied Nov. 9, 1950.

Gee & Hargraves, Pocatello, for appellant.

Zener & Peterson, Pocatello, for respondents.

KEETON, Justice.

This action was brought by Grover T. Chatterton, a minor, thirteen years and ten months of age at the time of the injury hereinafter referred to, by his guardian ad litem, against Pocatello Post, a corporation, to recover damages because of injuries suffered on the morning of February 7, 1949. During the course of the trial, the father was joined as a party plaintiff, claiming damages suffered due to doctor and hospital bills incurred, the result of injuries to the minor son.

The minor, Grover T. Chatterton, one of the respondents, will hereinafter be referred to as plaintiff. Pocatello Post, appellant, will be referred to as defendant.

Issues framed by the pleadings were tried before a jury which returned a verdict in favor of the plaintiff in the sum of $9,954. Judgment was entered on the verdict from which judgment and order denying its motion for a new trial the defendant appealed.

The pertinent facts are: plaintiff, a minor, while working as a carrier delivering newspapers purchased from defendant, was struck by an automobile driven by a man named Hill, and suffered a fracture of the leg and other injuries.

Because of inclement weather and poor condition of roads, streets and highways, it was difficult for plaintiff on the day of the accident to make deliveries of papers by the customary method. Defendant was notified of this by phone and sent its district manager, Rance Manion, with his car to assist the plaintiff. Manion was not familiar with the route or the customers and relied on plaintiff to tell him when and where to stop the car. At plaintiff's direction, Manion parked the car on the right hand side of the highway (Yellowstone Highway, Alameda), in the direction in which he was driving, near a place where a delivery was to be made. Plaintiff alighted from the automobile on the right hand side, went around behind and started across the highway. He had gone a short distance when he collided with an automobile driven by Hill and suffered the injuries complained of.

The complaint alleged three grounds of negligence on the part of defendant: first, in parking the car on the right hand side of the road so plaintiff would be required to cross the highway to reach the westerly side to make a delivery; second, in not parking the automobile off the oiled portion of the roadway; third, in not warning plaintiff of the danger that existed in crossing the highway and not driving the automobile across the street to the west side so that plaintiff could alight from the vehicle on the side of the road where the delivery was to be made.

For a reversal of the judgment, defendant assigns numerous alleged errors occurring at the trial, claiming among other things that the complaint does not state facts sufficient to constitute a cause of action, that a non-suit should have been entered, that the evidence failed to show negligence on the part of the defendant, and does show negligence on the part of the plaintiff, that the acts complained of were not the proximate cause of the injury and assigns as error the giving of certain instructions and the refusal of the court to give others. Assignments of error which we deem necessary for decision will be discussed.

The defendant contends that plaintiff was an employee coming under the Workmen's Compensation Act. I. C. § 72-101 et seq. The jury on conflicting evidence found that plaintiff was an independent contractor and for the purpose of decision we will assume that the relationship of master and servant did not exist.

One of the claimed acts of negligence on the part of the plaintiff is the failure of Manion to park the car off the oiled portion of the highway and that this failure violated the statute of the State pertaining to the parking of motor vehicles.

Sec. 49-526, I. C. provides among other things that 'No person shall park * * * any vehicle, * * * upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway: * * *.'

In the instant case, there was a conflict in the evidence as to whether or not the car was parked entirely off the pavement. However, all the testimony clearly established the fact that the car was parked against a snow bank, as far to the right as it could be driven, and it was not practicable or reasonably possible to park the car further to the right.

If the car had been driven across the road as plaintiff contended it should have been, it would have been in direct violation of Sec. 49-509, I. C. and would have been an act of negligence, in which event Chatterton would have alighted from the automobile directly onto the highway in the fact of traffic, instead of a place of safety. Negligence cannot be predicated on a compliance with the law. Gray v. Southern Pacific Co., 21 Cal.App.2d 240, 68 P.2d 1011.

Before one can recover for the negligent acts of another, there must be a breach of some legal duty causing damage reasonably foreseeable and without which breach the damage would not have occurred. In other words, there must be the existence of a duty on the part of the defendant to protect plaintiff from the injury, failure of the defendant to perform that duty, injury to plaintiff from such failure. 45 C.J. 632, 65 C.J.S., Negligence, § 1.

The breach of duty to be actionable must be the proximate cause of the injury complained of, that is, the cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the result, and without which the result would not have occurred. 65 C.J.S., Negligence, § 103, p. 645.

It may be stated as a general rule that negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by which the injuries are inflicted is not the proximate cause thereof. 38 Am.Jur. 702.

Applying these rules to the case before us we conclude that the negligent acts complained of were not the proximate cause of the injury and the acts of Manion (defendant's agent) had no causal connection with the injury sustained. There can be no liability for an act of negligence except where such act is the proximate cause, and where an intervening act of force is put in motion by another, and for which defendant is not responsible, there can be no recovery.

In the case of Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34, 145 A.L.R. 1199, a boy of twelve years of age was struck by an automobile driven by a third person after he alighted from a bus on which he was a passenger of one of the defendants. In a suit against the bus company negligence was claimed on...