Cupples Mercantile Co. v. Bow

Decision Date30 March 1920
Citation189 P. 48,32 Idaho 774
PartiesCUPPLES MERCANTILE COMPANY, a Corporation, Respondent, v. R. L. BOW, ED HERTH, C. D. CARLISLE and RUSSELL CRANE, Appellants
CourtIdaho Supreme Court

APPEAL AND ERROR-EVIDENCE-LAW OF THE ROAD-DAMAGES-VIOLATION OF LAW AS A BAR TO RECOVERY.

1. When there is substantial evidence to sustain a verdict, it will not be disturbed on appeal because of conflict.

2. A traveler may occupy and use any part of the public highway he desires when not needed by another whose rights thereto are superior to his own.

3. When he meets another traveler, he must turn to the right, if practicable, and give the other an opportunity to pass by turning to his right.

4. If it is impracticable to turn to the right, he may hold his position, but he is not justified in turning to the left, and if he does so he thereby violates the law.

5. Recovery, for damages sustained, cannot be had by one whose violation of the law was the proximate cause of his injury.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for damages. Judgment for plaintiff. Appeal from order denying new trial. Reversed.

Order reversed. Costs awarded to appellants.

G. W Lamson, for Appellants.

The authorities do not agree upon the question of whether or not turning a vehicle to the left in violation of the law of the road is negligence per se, but the weight of authority is to that effect under the facts in this case. (Lloyd v Calhoun, 82 Wash. 35, 143 P. 458.)

The presumption is against the person on the wrong side of the road. (Huddy on Automobiles, sec. 77; Cooley on Torts, p 666; Daniels v. Clegg, 28 Mich. 32; Brooks v Hart, 14 N.H. 307; Perlstein v. American Express Co., 177 Mass. 530, 59 N.E. 194, 52 L. R. A. 959.)

Driver on wrong side is prima facie negligent. (Huddy on Automobiles, sec. 77; Steele v. Burkhardt, 104 Mass. 59, 6 Am. Rep. 191.)

The mere proof of negligence does not entitle a party to recover, but he must show that the negligence was the proximate cause of the injury. (Paul v. Atlantic Coast Line R. Co., 170 N.C. 230, 87 S.E. 66, L. R. A. 1916B, 1079; Brooks v. Hart, 14 N.H. 307; Wheeler v. Wall, 157 Mo.App. 38, 137 S.W. 63.)

W. A. Stone, for Respondent, cites no authorities on points decided.

MORGAN, C. J. Rice, J., concurs. BUDGE, J., Dissenting.

OPINION

MORGAN, C. J.

While traveling at night in an automobile along a public highway in a westerly direction appellants collided with an automobile belonging to respondent, in charge of one of its officers, traveling in an easterly direction. The middle portion of the highway, a space about 16 feet wide, was paved and there was a graveled strip from two to four feet wide on each side of the pavement.

Appellants testified they were traveling along the extreme northerly border (their right-hand side) of the paved portion and that respondent's car was somewhat north of the middle of it; that as the cars approached each other respondent's driver turned sharply to his left and caused the collision.

The occupants of respondent's car testified both automobiles traveled along the extreme south edge of the pavement, and so continued to approach one another until it became apparent a collision would result unless their driver turned sharply to his left, which he did; that thereupon the driver of appellants' car turned sharply to his right and the collision resulted; also that there was a ditch to their right which rendered it unsafe to attempt to pass on that side.

There is testimony, which is contradicted, tending to show the driver of the car in which appellants were riding was intoxicated. These conflicts were undoubtedly resolved by the jury in favor of respondent, and, following the well-established rule that where there is substantial evidence to sustain a verdict it will not be disturbed on appeal because of conflict (Hardy v. Ward, 31 Idaho 1, 168 P. 1075; Brown v. Hardin, 31 Idaho 112, 169 P. 293), we will proceed upon the theory that the testimony given on behalf of respondent is true and that given on behalf of appellants, contradictory thereof, is untrue.

Respondent sued for damages to its automobile. Appellant, Herth, answered and after denying the material allegations of the complaint alleged, by way of cross-complaint, that he was the owner and driver of the automobile occupied by appellants and that appellants, other than himself, had employed him to transport them from Nampa to Boise and return, which he was doing at the time of the collision. He asked for judgment against respondent for damage to his automobile. Appellants, other than Herth, answered putting the material allegations of the complaint in issue and denying liability on their part. Judgment was in favor of plaintiff against all the defendants, and this appeal is from an order overruling a motion for a new trial.

"The law of the road" as it was when this collision occurred is to be found in C. L., sec. 63:27, p. 395, as follows: "Whenever a person operating a motor vehicle shall meet on the public highway any other person riding or driving a horse or horses, or other draft animals or any other vehicle, the person so operating such motor vehicle shall reasonably turn the same to the right so as to give half of the traveled road, if practicable, and a fair and equal opportunity to pass, to the other, without interference; . . . ."

The theory of "the law of the road" upon which this case was tried is shown by the instruction given to the jury as follows: "If the jury believe from the evidence that just before the collision between the automobile of plaintiff and the automobile in which the defendants were riding, the said automobile of plaintiff was being driven on the right-hand side or south of the center of the public highway, and that the automobile containing the defendants was proceeding in an opposite direction and on the same side of such public highway, and if you further believe from the evidence that the driver of the car of plaintiff as an ordinarily prudent and careful person, had reasonable cause to believe, from appearances and under all the circumstances shown by the evidence, that plaintiff's car was about to collide with the approaching car carrying the defendants, the driver of plaintiff's car had the right to turn to the left in order to avoid a collision, and, in so doing, the driver of plaintiff's car would not be guilty of negligence, providing you find there was no reasonably safe place for the driver of plaintiff's car to turn out to the right. If there was a reasonably safe place for the driver of plaintiff's car to turn to the right, it was his duty so to do, and in that event his turning to the left would be negligence, and plaintiff could not recover."

The collision occurred on the extreme north side of the road, respondent's car being north of that of appellants and entirely off the pavement, in such position as to demolish the right front wheel of each of them. While some of the witnesses testified to conclusions to the contrary, it is entirely clear from the admitted physical facts in the case that had respondent's driver continued eastward on the south side of the road the car in which appellants were riding would have passed to his left; that the apparent danger in so doing was not real, and that the attempt of respondent's driver to pass to the left of appellant's car, instead of to the right, was the proximate cause of the collision.

A traveler may occupy and use any part of the road he desires when not needed by another whose rights are superior to his own. When he meets another traveler the statute above quoted requires him to turn to the right, if practicable, and to give the other an opportunity to pass, in obedience to the law, by turning to his right. If he is so near the right-hand side of the road as to make it impracticable to turn to the right, he is not required to do so; he may hold his position. Nothing in the statute will justify him in turning to the left. If he does so he thereby violates its plain provisions.

The decisions are not uniform on the question here presented. A number of courts adhere to the theory that although a traveler was injured as a direct result of his violation of "the law of the road" if, in violating it he acted as an ordinarily prudent and careful person would have done under the circumstances, he is not thereby precluded from recovering. (Riepe v. Elting, 89 Iowa 82, 48 Am. St. 356, 56 N.W. 285, 26 L. R. A. 769; Hubbard v. Bartholomew, 163 Iowa 58, 144 N.W. 13, 49 L. R. A., N. S., 443; Molin v. Wark, 113 Minn. 190, 129 N.W. 383, 41 L. R. A., N. S., 346; McFern v. Gardner, 121 Mo.App. 1, 97 S.W. 972.)

On the other hand, much authority may be found supporting the doctrine that recovery for damages sustained cannot be had by one whose violation of the law was the proximate cause of his injury. (Lloyd v. Calhoun, 82 Wash. 35, 143 P. 458; Broschart v. Tuttle, 59 Conn. 1, 21 A. 925, 11 L. R. A. 33; Winter v. Harris, 23 R.I. 47, 49 A. 398, 54 L. R. A. 643; Angell v. Lewis, 20 R.I. 391, 78 Am. St. 881, 39 A. 521; Newcomb v. Boston Protective Department, 146 Mass. 596, 4 Am. St. 354, 16 N.E. 555; Brooks v. Hart, 14 N.H. 307; Palmer v. Barker, 11 Me. 338; Brooks v. Thomas, 17 Phila. 45; Earing v. Lansingh, 7 Wend. 185.)

The statute here under consideration was enacted as a rule to govern our conduct while using the public highways. Such rule is an exercise of the police power and peculiarly within the province of the legislature. The purpose was to avoid the congestion, confusion, delay and disaster which would inevitably result from permitting each traveler to use his own judgment as to what part of the highway he should occupy...

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