Dawson v. Olson

• Decision Date: 18 November 1975
• Docket Number: No. 11610,11610
• Citation: 97 Idaho 274,543 P.2d 499
• Parties: Rodney Derryl DAWSON et al., Plaintiffs-Appellants, v. Ronald T. OLSON, Defendant-Respondent, v. State Farm Mutual Automobile Insurance Company, Intervenor-Respondent.
• Court: Idaho Supreme Court

Page 499

543 P.2d 499

97 Idaho 274

Rodney Derryl DAWSON et al., Plaintiffs-Appellants, v. Ronald T. OLSON, Defendant-Respondent, v. State Farm Mutual Automobile Insurance Company, Intervenor-Respondent.

No. 11610.

Supreme Court of Idaho.

Nov. 18, 1975.

R. B. Kading, Jr. and Dale G. Higer of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for plaintiffs-appellants.

Kent B. Power, Karl Jeppesen of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for defendant-respondent.

BAKES, Justice.

This is a wrongful death action arising out of a traffic accident in which Nathaniel and Hazel Dawson, husband and wife, were killed when the pickup truck driven by Hazel Dawson was struck by an automobile driven by the defendant Ronald T. Olson, an uninsured motorist. The accident occurred on January 12, 1968. On September 17, 1968, the plaintiffs, the children of Nathaniel Dawson, brought a wrongful death action against Olson. The Dawsons's automobile insurer, State Farm Mutual Automobile Insurance Company, petitioned to intervene on the ground that because the Dawson's policy contained an uninsured motorist provision, the insurance company had a vital interest in the outcome of this case. The petition to intervene was granted. The case was tried beginning October 5, 1970, and the jury returned a verdict for the plaintiffs for $75,000. Olson and State Farm both moved for a judgment notwithstanding the verdict or a new trial. On November 27, 1970, the trial court entered judgment notwithstanding the verdict for both the defendant and the intervenor. From this entry of judgment the plaintiffs appealed.

In Dawson v. Olson, 94 Idaho 636, 496 P.2d 97 (1972), we held that the judgment notwithstanding the verdict had been erroneously granted because there was sufficient substantial evidence to support the verdict, and remanded the case for further proceedings. Upon remand the trial judge granted the defendant-and intervenor-respondents' motion for new trial. The plaintiffs appealed from that order and, in Dawson v. Olson, 95 Idaho 295 507 P.2d 804 (1973), we affirmed the order granting a new trial. That trial was held on December 10 and 11, 1973, and resulted in a jury verdict for the defendant. Judgment was entered for the defendant. The plaintiffs moved for a new trial and the motion was denied. The plaintiffs have taken this appeal from the judgment and the denial of their motion for new trial.

The uncontradicted testimony given at the second trial disclosed the following sequence of events preceding the accident. The Dawson pickup was the second in a line of three vehicles that were exiting from Interstate 80N onto Franklin Road, Highway 20-26, at the interchange between the two highways near the eastern city limits of the city of Caldwell. Charles Regsdale was driving the first vehicle in the line, a semi-truck trailer, which was pulling two 26-foot trailers and which had an overall length of approximately 64 feet. At the top of the exit ramp, where the ramp intersected Franklin Road which passes over Interstate 80N, there was a stop sign, a stop line and a flashing red light. Ragsdale brought his truck to a complete stop at the top of the ramp, then turned left to proceed easterly along Franklin Road away from the city of Caldwell. John H. Montgomery, the driver in the third vehicle in the line on the exit ramp, testified that as the truck moved away from the stop sign the Dawson pickup did not drive up to and stop at the stop line or stop sign at the top of the exit ramp; rather, it followed along closely behind Ragsdale's truck as that truck made a left hand turn onto Franklin Road, never stopping before it entered the intersection. The Dawson vehicle, which was turning left to proceed easterly along Franklin Road, was struck by the Olson vehicle as it was being driven westerly toward Caldwell. The collision occurred in the westbound lane. The impact severed the cab of the pickup from its bed and the camper sitting on the bed, throwing the cab some 116 feet from the point of impact. The Olson vehicle left no skid marks approaching the point of impact, nor did the witnesses report hearing any screeching of tires indicating that Olson had slammed on the brakes prior to impact.

The drivers of the truck and the vehicle following the Dawson pickup testified that the Olson vehicle was traveling at a speed of approximately 50 to 60 miles per hour immediately prior to impact. The posted speed limit at the overpass was 35 miles per hour, but the evidence indicated that a sign located approximately one quarter mile east of the overpass, facing the direction Olson was traveling, was posted at 50 miles per hour. Testimony also indicated that because Franklin Road arched over Interstate 80N at this interchange a person stopping at the stop sign or stop line had limited visibility of traffic approaching from the east because the driver could not see over the crest of Franklin Road, and that a driver turning left had to creep into the westbound lane in order to check for traffic approaching in that lane.

During trial the plaintiffs attempted to introduce the following evidence which was not admitted by the trial court: (1) a map of the interchange prepared by John L. Hoffman, a consulting engineer, which was prepared from official State Highway Department maps which were admitted into evidence, but which eliminated a great deal of the engineering detail found in those maps; (2) a chart of automobile stopping distances for various speeds taken from the Idaho Driver's Handbook; and (3) the testimony of witness Lawrence Reece that at a distance of approximately a mile and one half from the point of the collision he had been passed by the Olson vehicle and that the Olson vehicle was then traveling at approximately 90 miles per hour. This evidence was admitted by the trial court in the first trial, but excluded in the second trial.

Also, after the case was submitted to the jury and they had deliberated for two hours, the jury returned to court and the foreman asked the trial judge for further explanation of the meaning of 'proximate' as given in the instructions to the jury using the phrase 'proximate cause.' The trial judge refused, telling them to reread the instruction number 4 because 'that is the definition of it.' (Rptr.Tr., p. 214).

The appellants assign as error the failure to admit into evidence the three items of evidence above discussed, the failure of the trial court of further instruct the jury on the meaning of proximate cause, and the failure of the trial court to grant the plaintiffs' motion for new trial. We hold that the trial court erred in excluding these items of evidence and in failing to further instruct the jury, and that the cumulative effect of these errors warrants a reversal of the trial court judgment and a remand of this case for a new trial.

I

The refusal of the trial court to admit the testimony of Lawrence Reece that, in his opinion, the Olson vehicle was traveling at a rate of 90 miles per hour a mile and a half from the point of collision was error. In sustaining the defendant's objection to Reece's testimony, the court stated it was so holding on the ground that the occurrence was too remote. In support of that ruling respondent argues that the record also reveals that Reece was incompetent to testify because he had an inadequate opportunity to observe the Olson vehicle as it passed him. Since we determine here that the testimony was not remote as a matter of law, and that Reece was competent to give his opinion, we reject both grounds for excluding the testimony.

In Koch v. Elkins, 71 Idaho 50, 225 P.2d 457 (1950), a case in which the question of whether the driver of a vehicle involved in a one-car accident was negligent was at issue, the trial court allowed into evidence the defendant's plea of guilty to a charge of reckless driving occurring three quarters of a mile away and less than two minutes before the time of the accident. In that case we said:

'Even if it be assumed that the guilty plea constituted an admission by the defendant as to the manner of his driving only at the time he passed the truck, and not at the time the car left the highway, it would still be admissible. Elkins, himself, testified that he was traveling about 25 miles per hour just before the accident. At that rate he would travel the three-fourths mile in less than two minutes. This would not be too remote to have some weight as an admission as to the manner of driving at the time of the accident.' 71 Idaho at 54, 225 P.2d at 460. (Emphasis added).

In the case at bar, Reece was prepared to testify that the Olson vehicle had passed him, traveling at a rate of approximately 90 miles per hour, at a point about a mile and a half from the scene of the accident. A vehicle traveling between 60 and 90 miles per hour will traverse a mile and one half in from 60 to 90 seconds. Under the Koch holding, this could not be considered too remote to have some weight as evidence of Olson's speed at the overpass.

Further, in a case which involved the same issue as to the admissibility of an opinion of the speed of the vehicle in question shortly before the collision, the Supreme Court of Pennsylvania stated:

'Remoteness of the evidence is not determinable by distance and time alone, but . . . depends upon the facts in each case. No exact limitation of distance or time can be fixed. Where the accident occurs in a city, for instance, with intersecting streets and traffic, evidence of a speed at a comparatively short distance before the accident may be too remote, whereas in rural areas evidence of speed at a greater distance may be relevant.' Finnerty v. Darby, 391 Pa. 300, 138 A.2d 117, at 125 (1958).

The suretch of highway from the point where the Olson vehicle passed Reece to the freeway overpass was straight and dry. We hold that the speed of that vehicle at the point at which Reece observed it is not too remote, but is...