O'Connor v. Meyer

• Decision Date: 21 December 1944
• Docket Number: 7191
• Citation: O'Connor v. Meyer, 66 Idaho 15, 154 P.2d 174 (Idaho 1944)
• Court: Idaho Supreme Court
• Parties: J. L. O'CONNOR and OLGA O'CONNOR, husband and wife, Respondents, v. JOHN G. MEYER and CECIL NEBELSIECK, Appellants

154 P.2d 174

66 Idaho 15

J. L. O'CONNOR and OLGA O'CONNOR, husband and wife, Respondents, v. JOHN G. MEYER and CECIL NEBELSIECK, Appellants

No. 7191

Supreme Court of Idaho

December 21, 1944

1. Trial

The trial court did not err in instructing jury before oral argument on plaintiffs' insistence and permitting jury to take instructions to jury room, though defendants concluded that giving of such instructions after arguments would be best for their side of case, especially in absence of prejudice to defendants. (I.C.A., secs. 7-206, subds. 4, 6; 7-207, 7-208.)

2. Appeal and error

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

3. Trial

The fact that trial court gave jury instructions defining issues of sudden emergency and unavoidable accident in personal injury suit did not obligate court to give defendants' requested instruction on same issues.

4. Trial

The trial court, having fully and correctly instructed jury on issues of negligence, want of ordinary care and unavoidable accident, properly refused defendants' requested instruction on such issues.

5. Automobiles

In action for injuries to passenger in automobile colliding with defendants' school bus, where evidence was conflicting as to whether ruts in which collision occurred were in center of highway or on automobile driver's extreme right side of road, court properly instructed jury in language of statute that vehicle driver must drive on his right-hand side of highway as closely as possible to right-hand edge or curb thereof, unless impracticable to do so. (I.C.A., sec. 48-509.)

6. Automobiles

Whether it was impracticable for driver of school bus, colliding with automobile, to drive on his own right side of highway, was question for jury under evidence.

7. Appeal and error

The Supreme Court, on appeal, will pass on question of negligence only in clear case where question is free from doubt.

8. Negligence

All fact questions as to negligence, contributory negligence and gross negligence are for jury.

9. Appeal and error

Negligence or gross negligence becomes law question, within appellate court's power to decide, only where evidence points unerringly to certain conclusion.

10. Automobiles

Whether driver of school bus, colliding with automobile, was guilty of negligence in failing to drive on his own right side of road, and whether collision was avoidable or not, were fact questions for jury under evidence.

11. Automobiles

Whether there was room on school bus driver's right side of traveled part of highway to pass approaching automobile and thus avoid collision therewith was fact question for jury under evidence.

12. Damages

It is for jury to estimate damages, as best it can, by reasonable probabilities based on jurors' sound judgment as to what would be just and proper under all circumstances.

13. Damages

$3,000 damages for fractures of radius and ulna of 40 year old married woman, resulting in prominent distal ulna, shortening of radius, limitation of wrist dorsiflex, palmar flexion radial and ulnar deviation and supination, stiffness of fingers and thumb, and poor grip in right hand, was not excessive.

Appeal from the District Court of the Second Judicial District of the State of Idaho, in and for Latah County. Hon. A. L Morgan, Judge.

Affirmed.

Verner R. Clements for appellants.

Where timely objection is made to the giving of written instructions and permitting the jury to take them to their room with the request made to charge the jury according to the provisions of Sec. 7-207 and 7-208 I.C.A., it is error for the court to proceed otherwise. (Sec. 7-206 I.C.A.; Schmidt v. Williams, 34 Ida. 723; Byington v Horton, 61 Ida. 404.)

A motorist approaching a portion of road obstructed by snow and ice cannot rely upon written traffic rules, but is bound to know that all rules of road are suspended, and must be prepared to submit to and be governed by conditions as he finds them. (Parrish v. Smith (Colo.), 78 P.2d 629.)

Durham & Hyatt for respondents.

Instructing the jury in writing and prior to argument is the procedure enjoined by statute and is mandatory, except the Court "may" for "special reasons," in his discretion, vary this procedure. (Sec. 7-206, subd. 4, I.C.A.; sec. 7-207, I.C.A.; sec. 7-208, I.C.A.; Schmidt v. Williams, 34 Ida. 723; 203 P. 1075; Byington v. Horton, 61 Ida. 404, 102 P.2d 652.)

The driver of a car will be held liable for the consequences of its skidding if such skidding is due to any negligent act or omission on his part. (Tutewiler v. Shannon, 8 Wn. (2d) 23, 111 P.2d 215; Cook v. Miller Transp. Co. (Pa.), 179 A. 429.)

Holden, C. J. Budge, Givens and Dunlap JJ., concur. Ailshie, J., did not sit at the hearing and took no part in the decision in this case.

OPINION

Holden, C. J.

January 7, 1943, a Chevrolet automobile owned and driven by Chester Qualey, in which respondent, Olga O'Connor (wife of respondent, J. L. O'Connor), was riding, collided with a forty-two passenger International school bus, owned by respondent John G. Meyer and driven by respondent Cecil Nebelsieck. The collision between the two cars was head-on, occurring at about 4:45 p. m. on the highway between Genesee, Idaho and Uniontown, Washington. As a result of the collision respondent Olga O'Connor sustained alleged serious injuries.

Thereafter, July 8, 1943, this action was commenced by respondents against appellants Meyer and Nebelsieck to recover damages for the injuries so sustained by respondent Olga O'Connor. December 13, 1943, the cause was tried by the court sitting with a jury. At the conclusion of the submission of the evidence, appellants moved the action be dismissed and judgment of nonsuit entered against the respondents, which the court denied. Thereupon, and before the oral arguments of the cause by counsel for the respective parties, appellants objected to the giving of written instructions before the oral arguments, and appellants also objected to permitting the jury to take the written instructions to their room. On the other hand, respondents at once moved the court to instruct the jury in writing (impliedly) before the oral arguments. Appellants' objections were overruled and denied. Whereupon, and before the oral arguments, the court instructed the jury. The jury returned a verdict in favor of respondents and against appellants and judgment was entered thereon December 16, 1943. The appeal to this court is from the judgment.

Appellants assign eleven alleged errors. Those thought to be important and material to a decision of the appeal will be discussed and passed on in the following order:

1. That: "The court erred in instructing the jury in writing prior to argument, and permitting the written instructions so given to be taken by the jury to their room."

In support of the above quoted objections, appellants contend:

"Each litigant is entitled to adopt the procedure afforded him by statute according to his view of the case. There are good reasons in many cases where the time and manner of instructing the jury may vary or exist in different order, which the legislature recognized by providing the statute in question from which the litigant might choose the course of procedure he concluded would be best for his side of the case."

In the case at bar, it will be noted, appellants insisted the court instruct the jury after the oral arguments and that respondents insisted the court instruct the jury before the oral arguments. Here, then, we have a case where appellants "concluded" that to have the jury instructed after the oral argument "would be best for his (their) side of the case," but respondents concluded it "would be best for his (their) side of the case to have the jury instructed before oral argument." Of course, the trial court could not do both. We do not think the legislature intended the order of procedure should depend upon which side of a case would receive the most benefit. Nor do we think the legislature had benefits to either or any "side" in mind in enacting sec. 7-206, I.C.A., fixing "unless the judge for special reasons otherwise directs," the "order of trial." (Emphasis ours.)

We direct attention to the pertinent provisions of section 7-206, supra. Subdivision 4 provides:

"When the evidence is concluded and before the case is argued or submitted to the jury, either party may request the court to give to the jury instructions in writing on the law arising in the cause which shall be given or refused as asked: provided, that the court may also give other and further written instructions of its own motion. All of the written instructions given shall be carried by the jury to their room for their guidance in arriving at a correct verdict according to the law and the evidence. The instructions shall then be read to the jury by the court, and unless the case is submitted to the jury without argument, the plaintiff must commence and may conclude the argument."

Subdivision 6 provides, in substance, that:

"If either party objects to the giving of written instructions and permitting the jury to take them to their room" that "The court may then charge the jury, according to the provisions of sections 7-207 and 7-208."

Section 7-207, I.C.A., simply, in so far as pertinent here, provides:

"In charging the jury the court may state to them all matters of law which he thinks necessary for their information in giving their verdict . . ."

And section 7-208, I.C.A., covers the matter of "requests for instructions," "where either parts asks special instructions." There is no hint in any provision of either section 7-207 or section 7-208, supra, of an intent on the part of the legislature to abrogate or annul the clear and...