Davis v. Bushnell, No. 10402

CourtUnited States State Supreme Court of Idaho
Writing for the CourtSHEPARD; McFADDEN
PartiesOrban DAVIS, Individually and as Guardian Ad Litem for his Minor Son, Robert O. Davis, Plaintiff-Respondent, v. Robert A. BUSHNELL and McNeel Lumber Company, an Idaho corporation, Defendants-Appellants.
Docket NumberNo. 10402
Decision Date27 February 1970

Page 652

465 P.2d 652
93 Idaho 528
Orban DAVIS, Individually and as Guardian Ad Litem for his Minor Son, Robert O. Davis, Plaintiff-Respondent,
v.
Robert A. BUSHNELL and McNeel Lumber Company, an Idaho corporation, Defendants-Appellants.
No. 10402.
Supreme Court of Idaho.
Feb. 27, 1970.

[93 Idaho 529]

Page 653

Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-appellants. fendants-appellant.

Bruce O. Robinson, Kenneth F. White, Nampa, for plaintiff-respondent.

SHEPARD, Justice.

This is an action to recover for personal injuries suffered by the minor child of the plaintiff who, while riding a bicycle, was struck by a truck driven by the defendant, Robert A. Bushnell, doing business as the McNeel Lumber Company. A jury verdict was returned in favor of the plaintiff, judgment was entered thereon, and defendants appeal. We affirm.

At approximately 3:00 p. m. on Saturday, April 16, 1966, Robert O. Davis, an eight year and ten month old child, was riding his bicycle across South Montana Street in Caldwell, Idaho, when he was struck by a southbound pickup truck driven by Robert A. Bushnell. There was a large truck and trailer combination parked on the west side of South Montana Street at least partially off the traveled portion of the roadway. The area in question is partially residential. However, the area west of the accident scene consists of school grounds.

Aside from the minor child and the defendant driver, there were no witnesses to the accident and the circumstances thereof are unclear and controverted in the record. Defendant Bushnell stated in essence that the accident was unavoidable because the boy rode his bicycle into the street from immediately behind the parked truck and despite Bushnell's minimal speed there was nothing he could do to avoid the collision. The confused and self-contradictory statements by the boy, as indicated in his deposition, could be deemed to substantiate Bushnell's testimony. However, the plaintiff's evidence consisting of photographs, skidmarks, location of the bicycle following the impact, magnitude of the impact, and the physicist's testimony, could all be taken to establish a point of impact some distance down the street from the parked truck hereby controverting Bushnell's testimony of the point of entry into the street and the point of impact.

There was substantial dispute as to the speed of the defendants' pickup truck immediately prior to the accident. Plaintiff introduced testimony of a policeman and a physics professor to indicate that based on the length of the skidmarks left by the pickup truck Bushnell was driving six to eight miles per hour above the posted speed limit of 30 miles per hour. Defendants, on the other hand, produced the testimony of a traffic accident investigator who indicated that based on his calculations Bushnell's speed was clearly within the posted limit.

There is substantial dispute as to the injuries suffered by the Davis youth. Ten or eleven months after the accident the Davis boy began to experience epileptic seizures which range in intensity up to full convulsions. Drugs must be administered to control the seizures. Physicians testified for both plaintiff and defendants, and it is enough to say that plaintiff's medical witnesses were of the opinion that the epileptic seizures were caused by the accident while defendants' medical testimony indicated no causal connection between the accident and the seizures.

At the conclusion of trial a jury returned a unanimous verdict of $55,000.00 in favor of the plaintiff. Defendants moved for an involuntary dismissal of the action at the close of plaintiff's case, moved for a directed verdict in favor of the defendants at the close of all the evidence, and following the jury verdict moved for a judgment notwithstanding the verdict or in the alternative for a new trial. All motions were denied.

Appellants assign error in the trial court's denial of their motion for involuntary dismissal at the close of plaintiff's case. It is axiomatic that the evidence be viewed at that point in the light most favorable to the plaintiff. Kelley v. Bruch, 91 Idaho 50, 415 P.2d 693 (1966). In so viewing the evidence the trial court was [93 Idaho 530]

Page 654

correct in ruling that the jury could have reasonably believed that on a clear day, on a straight city street, the Davis boy was struck by Bushnell's pickup truck while he was attempting to cross the street after having looked four times to determine the safety of his actions. The jury could have believed the plaintiff's evidence as to the boy's point of entry into the street and the point of impact, and also that Bushnell was driving above the posted speed limit. The jury could have believed that Bushnell's actions were negligent and were the proximate cause of the accident.

Appellants also assign error in the trial court's denial of his motion for a directed verdict at the close of all the evidence. For that purpose we are also required to view the evidence most favorably to the plaintiff. The jury could have believed the plaintiff's evidence...

To continue reading

Request your trial
16 practice notes
  • McBride v. Ford Motor Co., No. 13441
    • United States
    • United States State Supreme Court of Idaho
    • October 27, 1983
    ...appeal the instructions must be viewed as a whole to determine whether the jury was properly and adequately instructed. Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967). If the court's instructions, considered as a whole, fairly and ad......
  • Garrett v. Nobles, No. 12840
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1981
    ...correctly stated the issues and the relevant law. See, e. g., Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975); Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970). Where, as here, the substance of a party's proposed instructions are adequately covered elsewhere, the trial court does n......
  • Annau v. Schutte, No. 11636
    • United States
    • Idaho Supreme Court
    • May 20, 1975
    ...find no prejudice in failing to give this instruction in light of a review in their entirety of the instructions given. Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 Appellants also assign as error the failure of the trial court to instruct the jury prior to the giving of closing arguments ......
  • Rindlisbaker v. Wilson, No. 11127
    • United States
    • Idaho Supreme Court
    • February 11, 1974
    ...as a whole; consequently, on appeal, jury instructions will not be considered piecemeal. (Cases cited).' See also Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970). We find no reversible error in Instruction No. Instruction No. 6 provides as follows: 'No. 6 'You are instructed that the d......
  • Request a trial to view additional results
16 cases
  • McBride v. Ford Motor Co., No. 13441
    • United States
    • United States State Supreme Court of Idaho
    • October 27, 1983
    ...appeal the instructions must be viewed as a whole to determine whether the jury was properly and adequately instructed. Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967). If the court's instructions, considered as a whole, fairly and ad......
  • Garrett v. Nobles, No. 12840
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1981
    ...correctly stated the issues and the relevant law. See, e. g., Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975); Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970). Where, as here, the substance of a party's proposed instructions are adequately covered elsewhere, the trial court does n......
  • Annau v. Schutte, No. 11636
    • United States
    • Idaho Supreme Court
    • May 20, 1975
    ...find no prejudice in failing to give this instruction in light of a review in their entirety of the instructions given. Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 Appellants also assign as error the failure of the trial court to instruct the jury prior to the giving of closing arguments ......
  • Rindlisbaker v. Wilson, No. 11127
    • United States
    • Idaho Supreme Court
    • February 11, 1974
    ...as a whole; consequently, on appeal, jury instructions will not be considered piecemeal. (Cases cited).' See also Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970). We find no reversible error in Instruction No. Instruction No. 6 provides as follows: 'No. 6 'You are instructed that the d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT