Crane v. Banner

• Decision Date: 06 June 1969
• Docket Number: No. 10302,10302
• Citation: 93 Idaho 69,455 P.2d 313
• Parties: Ralph CRANE and Verness Crane, husband and wife, Plaintiffs-Appellants, v. Mark BANNER by his Guardian ad litem, Max Banner; Max Banner and Darlene Banner, husband and wife, individually; and Brock B. Loveland by his Guardian ad litem, Don C. Loveland and Don C. Loveland, individually, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 313

455 P.2d 313

93 Idaho 69

Ralph CRANE and Verness Crane, husband and wife, Plaintiffs-Appellants, v. Mark BANNER by his Guardian ad litem, Max Banner; Max Banner and Darlene Banner, husband and wife, individually; and Brock B. Loveland by his Guardian ad litem, Don C. Loveland and Don C. Loveland, individually, Defendants-Respondents.

No. 10302.

Supreme Court of Idaho.

June 6, 1969.

Racine, Huntley, Herzog & Olson, Pocatello, James Annest, Burley, for plaintiffs-appellants.

Parry, Robertson, Daly & Larson, Schwartz & Doerr, Twin Falls, for defendants-respondents. McFADDEN, Chief Justice.

The present action was instituted by Mr. and Mrs. Ralph Crane, the parents of eight year old Connie Crane, who was struck and killed by an automobile driven by the seventeen year old defendant Brock Loveland while she was crossing a paved county road in front of her home, situated about five miles southeast of Burley.

The affidavits and depositions which were before the trial court on the defendants' motions for summary judgment reveal the following facts. On the evening of November 9, 1966, at dusk, approximately 5:30 p. m., the decedent, Connie Crane, was returning home from a primary class at the L. D. S. Church, about a half mile from the Crane farm. Although Connie's mother usually met her at the church and drove her home, on this particular occasion Mrs. Crane was late in leaving the house, and Connie had accepted a ride home with the thirteen year old defendant Mark Banner, who was driving his parents' pickup truck with their permission and had gone to the church to get his two younger brothers. Mark Banner also gave a ride home to two of the Heward children whose home is almost directly across the road from the Crane residence.

After picking up his brothers, Mark Banner drove his father's pickup east on the county road designated as 300 South, Burley, Idaho, until he arrived at the Heward residence, where he pulled the truck off the oiled portion of the road to let the Heward children and the decedent get out. The truck was facing east, with the headlights on high beam directed down the road.

From where the pickup was parked, Connie Crane had to cross the road to reach her home on the north side of the highway. She got out of the truck with the Heward children and went behind the Banner pickup onto the road where she was struck by a 1963 Ford sedan driven by Brock Loveland, who was driving west to get his brother who was also attending primary class at the L. D. S. Church. Loveland stated that he saw the decedent just as she stepped out from behind the pickup onto the highway and that she was running as fast as she could and did not look in either direction before crossing the road. He believed, however, that she probably saw him just prior to impact because at the last moment she veered diagonally down the road. He also testified that he was travelling approximately forty-five miles per hour and first saw the decedent when she was approximately fifteen to twenty feet away. He was driving directly into the bright lights on the Banner pickup, which bothered him, interfering to a certain extent with his vision. He further stated that he knew there were children in the area and because of this fact and the fact that he was blinded by the bright lights, he decreased his speed from about fifty miles per hour to about forty-five miles per hour.

Mr. Gerald Heward stated in his affidavit that the lights on the Banner pickup were shining directly into the face of the oncoming traffic and that immediately after the accident defendant Loveland told him that he did not see the Crane girl until he hit her because he was blinded by the lights on the Banner pickup. Additionally, a Mr. Curtis Neyman stated in his affidavit that he was driving directly behind the Loveland vehicle and that he too was blinded by the lgiths on the Banner pickup.

On February 14, 1968 the plaintiffs instituted this action, seeking $50,791.01 for the death of their daughter. The complaint alleges that the death was caused by the combined negligence of defendants Loveland and Banner and that this negligence is imputed to the parents of the two minors. The plaintiffs alleged that defendant Loveland was negligent in failing to keep a proper lookout and in driving his automobile in a careless and negligent manner while his visibility was impaired by the bright lights on the Banner pickup. As to defendant minor Mark Banner, the plaintiffs alleged that he negligently parked the pickup in such a manner that Connie Crane had to cross a well-traveled highway at night in order to get to her house. The plaintiffs also contend he was negligent in leaving his headlights on high beam and directed into the face of on-coming traffic. The complaint also alleges that Mark Banner's parents were negligent in furnishing their thirteen year old son an automobile at a time when he was too young to be a licensed driver.

The Lovelands who were defendants, and the Banners who were also defendants, separately answered the complaint. The Loveland answer denied negligence on the part of Brock Loveland and as an affirmative defense asserted that the actions of Connie Crane were the sole and proximate cause of the accident. The answer also alleged that the concurrent acts of Mark Banner and Connie Crane were the sole and proximate cause of the accident and that the accident resulted from unavoidable circumstances.

The Banner answer denied negligence on the part of the Banner defendants and as an affirmative defense alleged that the actions of Connie Crane were the cause of the injury, or that she was contributorily negligent. The pleadings were summarized by the trial court's pre-trial order.

Both the Lovelands and Banners moved for separate summary judgments, supported by the depositions of Brock Loveland, and of the plaintiffs, Mr. and Mrs. Crane. The Cranes opposed the motions for summary judgment on the basis of depositions filed, and the depositions of Mr. and Mrs. Banner, the parents of Mark Banner, and affidavits of other witnesses. The trial court found, however, that there was no genuine issue of material fact presented, granted the motions for summary judgment, and entered summary judgments dismissing the complaint.

Subsequently, the plaintiffs filed their motion for rehearing, reconsideration and vacation of summary judgment, this motion being supported by additional affidavits which for the first time asserted that Brock Loveland had been driving at a speed in excess of the speed limit and without headlights burning. The defendants moved to strike this motion for rehearing and reconsideration and supporting affidavits, which motion was granted by the trial court. The plaintiffs have appealed from the summary judgments and order subsequent to judgment granting the motions to strike.

The appellants contend that the court erred in refusing to consider the additional affidavits filed in support of their motion for rehearing. These affidavits, the appellants argue, merely reaffirmed and supported the facts contained in the initial affidavits filed in opposition to the respondents' motions for summary judgment. The respondents, on the other hand, contend that these additional affidavits raise new issues relating to defendant Loveland's speed and whether he was driving without lights at the time of the accident. Respondents rely upon two federal cases holding that a trial court will not consider affidavits filed after hearing on the motion for summary judgment. See Clarke v. Montgomery Ward & Co., 298 F.2d 346 (4th Cir. 1962) and Surkin v. Charteris, 197 F.2d 77 (5th Cir. 1952). It is our opinion, however, that the initial affidavits before the court at the time it entertained the motion for summary judgment raise genuine issues of material fact which require a reversal of the summary judgment. We find it unnecessary therefore to consider whether the court erred in refusing to consider the additional affidavits filed by appellants.

It is fundamental that summary judgment can be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Merrill v. Duffy Reed Constr. Co., 82 Idaho 410, 353 P.2d 657 (1960); Malone v. Continental Life & Accident Co., 89 Idaho 77, 403 P.2d 225 (1965); Steele v. Nagel, 89 Idaho 522, 406 P.2d 805 (1965). Moreover, this court has repeatedly stated that upon a motion for summary judgment all doubts are to be resolved against the moving party. Metz v. Haskell, 91 Idaho 160, 417 P.2d 898 (1966); Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966); Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965). In the present case the trial court did not elaborate on the basis for its order granting summary judgment to the respondents. The court must, however, have concluded that as a matter of law neither of the respondents was negligent, or that Connie Crane was contributorily negligent, or both. It is our opinion that the summary judgment cannot be sustained.

Both Lovelands and Banners contend that as a matter of law Connie Crane was contributorily negligent, and hence that the summary judgment should be sustained, regardless of any issue as to negligence of the respective defendants. See Collord v. Cooley, 92 Idaho 789, 451 P.2d 535 (1969); 6 Moore's Federal Practice § 56.17(4), pp. 2491-2492. The issue of contributory negligence, however, like the issues as to negligence and of proximate cause is generally an issue for resolution by a jury, especially when the issue as to the conduct of a child is involved. See: Annot. 77 A.L.R.2d 917 at 932. Only when reasonable men could not disagree or when only one possible conclusion could be reached as to the issue of contributory negligence of a child can it be held that such issue is one of law for the court. Kelley v. Bruch, 91 Idaho 50, 415 P.2d 693 (1966); Mundy v. Johnson, 84 Idaho 438, 373 P.2d 755 (1962); ...