Coughran v. Hickox

• Decision Date: 20 January 1960
• Docket Number: No. 8695,8695
• Citation: 348 P.2d 724,82 Idaho 18
• Parties: Hugh COUGHRAN, Plaintiff-Appellant, v. Volney W. HICKOX, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 724

348 P.2d 724

82 Idaho 18

Hugh COUGHRAN, Plaintiff-Appellant, v. Volney W. HICKOX, Defendant-Respondent.

No. 8695.

Supreme Court of Idaho.

Jan. 20, 1960.

Rehearing Denied Feb. 9, 1960.

Frank Kibler, Nampa, Donart & Donart, Weiser, for appellant.

Elam & Burke, Boise, Alexanderson & Davis, Caldwell, for respondent.

TAYLOR, Chief Justice.

This action arose out of an intersection collision which occurred July 22, 1956. Plaintiff (appellant) was driving his automobile east on an oiled or hard-surfaced highway. Defendant (respondent) was driving his pickup truck south on a graveled highway. The two vehicles collided in an intersection where the two highways cross. Such intersection and highways are within the Golden Gate highway district in Canyon county. Defendant was secretary of the district and as such he had recorded and signed minutes of the proceedings of the board of directors at a meeting held January 5, 1959, at which the board adopted a resolution 'establishing all side roads leading into oiled roads in the dist., not state highways, as stop roads.' Although the evidence is conflicting as to whether stop signs had been posted at the intersection prior to the collision, the evidence establishes that there were no stop signs posted at the intersection on the day of the collision.

Each party alleged that he entered the intersection first, and each charged the other with negligence in failing to yield the right of way. In addition, plaintiff alleged that he approached the intersection on a through highway and on defendant's right. Defendant alleged that plaintiff approached the intersection at an unsafe and dangerous rate of speed in excess of 45 miles per hour, and that plaintiff's view of the highway, on which defendant was approaching, was obstructed by vegetation growing along the highway. Plaintiff testified he was traveling about 35 miles per hour. Defendant testified that plaintiff was traveling 60 miles per hour and that he, defendant, was traveling about 25 miles per hour.

The initial contact of the vehicles was made between the left front fender of plaintiff's car and the right front fender of defendant's pickup truck. As a result, the two vehicles were thrown together, side against side. Defendant's truck was turned to the east and came to rest along the south side of the highway, upon which plaintiff had been traveling, at a point about 96 feet from the point of impact. Plaintiff's car was turned toward the southeast and came to rest against an embankment at the southeast corner of the intersection.

Defendant argues that these physical facts support his testimony that plaintiff was traveling at an excessive speed.

The jury returned its verdict for the plaintiff, but found no damages in his favor. From the judgment entered thereon, plaintiff brought this appeal.

The court instructed the jury in the language of the statute as follows:

'(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.

'(b) When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.'

Plaintiff requested an instruction containing subparagraph (b), supra, and the following:

'You are further instructed that two vehicles are to be considered as entering an intersection at approximately the same time when they approach so nearly at the same time that there would be imminent hazard of a collision if both continued the same course at the same speed.'

This request the court refused on the ground that it was covered by the instruction given. Plaintiff assigns the refusal as error.

In the case of Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883, 175 A.L.R. 1007, the plaintiff Moore approached the intersection, where the collision occurred, from the north. The defendant Kujath approached the intersection from the east. His defense was that he entered the intersection first; he testified he was moving at a speed between 25 and 30 miles per hour. Plaintiff testified he was driving at about 35 or 40 miles per hour. The jury found for the defendant. The Minnesota supreme court concluded from the facts that if defendant entered the intersection first it was by only one or two seconds. After quoting the intersection right of way statute, M.S.A. § 169.20, subd. 1, which is the same as our I.C. § 49-727, the court said:

'* * * As we view the two sentences, the second one so modifies the first as to require the driver on the left, even though he may reach the intersection first, to yield the right of way to the driver on the right in a situation where the two vehicles would collide were each to continue its course and maintain its rate of speed. To otherwise interpret the law and to arbitrarily give to him who first enters the intersection the right of way over another vehicle approaching at approximately the same time from the right would be to increase rather than diminish the hazards of driving. By approximately, the legislature must have meant the approach to an intersection of two vehicles so nearly at the same time that there would be imminent hazard of a collision if both continued the same course at the same speed. In that case, he on the left should yield to him on the right. While the driver on the left is not required to come to a dead stop, as at a through highway stop sign, unless it is necessary to avoid a collision, he nevertheless must approach the intersection with his car so under control that he can yield the right of way to a vehicle within the danger zone on the right.' 29 N.W.2d at page 886, 175 A.L.R. at pages 1010, 1011.

The Minnesota court held that the facts showed defendant was guilty of negligence as a matter of law in failing to yield the right of way.

In a later case, Bellman v. Posnick, 233 Minn. 268, 46 N.W.2d 475, the court again followed the rule announced in Moore v. Kujath, supra.

In the Bellman case the court held:

'Where plaintiff's own testimony disclosed that plaintiff drove into intersection only a split second ahead of defendant who was on the plaintiff's right, and there was no evidence that defendant was driving at an excessive speed, plaintiff would be deemed contributorily negligent as a matter of law for failing to yield a right of way, * * *.' Bellman v. Posnick, 46 N.W.2d 475, Syllabus 1.

Other authorities approving the rule set forth in Moore v. Kujath, supra, are: Vogel v. Vetting, 265 Wis. 19, 60 N.W.2d 399; Eden v. Klaas, 166 Neb. 354, 89 N.W.2d 74; Shew v. Bailey, 37 Tenn.App. 40, 260 S.W.2d 362.

In Gernandt v. Beckwith, 160 Neb. 719, 71 N.W.2d 303, the plaintiff approached from the left, but claimed to have entered the intersection first. There was no substantial difference in the speed of the two vehicles. After referring to the right of way statute, R.R.S.1943, § 39-728, the court said:

'* * * When a collision occurs in the ordinary city or country intersection, unless there is evidence that one of the vehicles was traveling at a very much greater rate of speed than the other, it is self-evident that the vehicles were reaching the intersection 'at approximately the same time." 71 N.W.2d at page 304.

Giving the defendant the benefit of the right of way statute under such circumstances, the Nebraska court sustained an order of the trial court dismissing the action at the close of plaintiff's evidence.

In Shamlian v. Minardi, 123 Cal.App. 495, 11 P.2d 402, the court, applying the right of way statute, West's Ann.Vehicle Code, §§ 550-552, said:

"* * * A vehicle may approach an intersection at 'approximately the same time' as another if it approaches slightly before or slightly after the other.' Both vehicles traveling at approximately the same rate of speed and colliding near the center of the intersection, it is quite evident that both cars approached the intersection at approximately the same time, within the foregoing definition. The Ford being driven by decedent at a lawful rate of speed therefore had the right of way, and it was negligence for appellant to attempt to proceed through the intersection.' 11 P.2d at page 403. In applying the rule contended for by appellant, the Wisconsin supreme court, in Vogel v. Vetting, 265 Wis. 19, 60 N.W.2d 399, held that where both drivers were negligent in the management and control of their respective vehicles, the driver on the left was negligent as a matter of law in failing to yield the right of way, and could not recover.

From the foregoing the rule may be adduced that, where two vehicles approach an intersection at lawful rates of speed and from such relative distances, that it must appear to a reasonably prudent person in the position of the driver on the left that if both vehicles continue their same course at the same speed, a collision is likely to occur--they approach the intersection 'at approximately the same time' and the driver on the left must yield to the driver on the right.

In Fester v. George, 71 S.D. 424, 25 N.W.2d 455, the plaintiff approached the intersection on the left of the defendant, and apparently entered the intersection first. Under a statute (SDC 44.0318) the same as ours, the court on this phase of the case said:

'* * * in determining the right of way it is without legal significance which car actually entered the intersection first if it appears that the vehicles approached or entered the intersection at approximately the same time. It follows that the single fact that plaintiff entered the intersection first, did not give him a right of precedence over defendant. The controlling issue is whether the two cars were approaching or entering the intersection at approximately the same time; if they were, the plaintiff being on the left, should have yielded to the defendant; if they were not, no question of right of way is presented. The parties are...