Dawson v. Salt Lake Hardware Co.

• Court: Idaho Supreme Court
• Writing for the Court: HOLDEN, C.J.
• Citation: Dawson v. Salt Lake Hardware Co., 64 Idaho 666, 136 P.2d 733 (Idaho 1943)
• Decision Date: 25 March 1943
• Docket Number: 7067
• Parties: FRANK C. DAWSON, ROBERT DAWSON, MILLARD DAWSON and JAMES DAWSON, Appellants, v. SALT LAKE HARDWARE COMPANY, a corporation, STEPHEN S. LYNCH and MABEL M. BELLVILLE, Respondents

136 P.2d 733

64 Idaho 666

FRANK C. DAWSON, ROBERT DAWSON, MILLARD DAWSON and JAMES DAWSON, Appellants, v. SALT LAKE HARDWARE COMPANY, a corporation, STEPHEN S. LYNCH and MABEL M. BELLVILLE, Respondents

No. 7067

Supreme Court of Idaho

March 25, 1943

Rehearing denied May 10, 1943.

AUTOMOBILES-INJURIES FROM OPERATION-LIABILITY TO GUEST-NEGLIGENCE-QUESTIONS FOR JURY-LAW OF THE ROAD-INSTRUCTIONS-APPEAL AND ERROR.

1. In action for death of automobile guest against host and owner and driver of another automobile concerned in collision wherein negligence was charged against the two defendants other than the host, the court properly instructed jury on subject of negligence of such defendants and that liability of host depended on proof not only of negligence but of reckless disregard of guest's rights. (I.C.A., sec 48-901, as amended by Sess. Laws, 1939, chap. 160.)

2. Where appellants themselves requested an instruction on contributory negligence and the parties tried the case in the lower court on theory that contributory negligence was a defense and the parties requested specific instructions on the subject, it could not be asserted for the first time on appeal that contributory negligence was not involved.

3. Instructions on the law of the road substantially in the language of the statute were not subject to criticism that they were confusing, and if other instructions were desired they should have been presented to the trial court including instruction on presumption that deceased guest exercised due care and caution for her own safety. (I.C.A., sec. 48-901, as amended by Sess. Laws, 1939, chap. 160; sec. 48-504 (a), b) (3).)

4. Under the statute speed in excess of 15 miles an hour when approaching within 15 feet of an intersection and in traversing an intersection of highway when the driver's view is obstructed is not "negligence per se," but there is a mere presumption of negligence, and the negligence of the driver is still an issuable fact. (I.C.A., sec. 48-504 (a). (b) (3).)

5. Where the evidence is either conflicting or where on disputed facts reasonable and fair minded men might differ as to the conclusion to be drawn or where different conclusions might reasonably be reached by different minds, the question of negligence is one of "fact" to be submitted to the jury.

6. It is only where the evidence is clearly and wholly against the finding of the jury, or where some essential fact necessary to establish liability has not been proved, that Supreme Court can interfere.

7. In action for death of automobile guest against host and owner and driver of the other automobile involved in collision near intersection, whether driver of the other automobile was negligent in approaching intersection at speed in excess of 15 miles per hour was for jury. (I.C.A., sec. 48-504 (a), (b) (3).)

8. Instruction defining the phrase "reckless disregard," as used in guest statute, as destitute of heed or concern for the consequences and as an act of such conscious indifference to consequences that the jury is justified in saying that the driver willfully injured his guest, and that "reckless disregard," "willful disregard," and "wanton disregard" are synonymous terms, was misleading since "reckless" as used in statute means without thought or care for consequences but the instruction was not substantially prejudicial. (I.C.A., sec. 48-901, as amended by Sess. Laws 1939, chap. 160.)

Rehearing denied May 10, 1943.

Appeal from the District Court of the Eleventh Judicial District for the State of Idaho, in and for the County of Twin Falls. Hon James W. Porter, District Judge.

Action for damages for wrongful death. Judgment for defendants. Affirmed.

Judgment affirmed, with costs to respondents.

O. W. Witham and Roy E. Smith for appellants.

The court erred in instructing the jury in its instruction No. 15 to the effect that although the plaintiffs did not claim that defendant Bellville intentionally injured Temple Dawson, they could not find for the plaintiffs unless they found from the evidence that defendant Bellville in operating her automobile, in which decedent Temple Dawson was riding as a guest, was guilty of such an act of conscious indifference that they would be justified in finding that she wilfully injured Temple Dawson, and that reckless disregard, wilful disregard and wanton disregard are equivalent and synonymous terms.

a. The instruction does not properly define the term reckless disregard as used in the guest statute, in that reckless disregard, wilful disregard, and wanton disregard are not equivalent and synonymous terms as stated in the instruction. (Coconower v. Stoddard (Ind.) 182 N.E. 466; Coner v. Chittenden, 163 A. 472; Bordonoro v. Senk, 147 A. 146, 109 Conn. 428; Siessenger v. Puth (Iowa) 239 N.W. 46; Crowell v. Demo, 1 N.W.2d 93, 231 Iowa 128.)

The court erred in its instructions No. 6, No. 8 and No. 21, defining contributory negligence and instructing the jury in effect as follows: "That if the jury found that Temple Dawson was guilty of contributory negligence the plaintiffs could not recover against the defendants." a. As respects plaintiffs action against defendant Bellville neither negligence or contributory negligence of deceased is an issue in the case, and contributory negligence of deceased, if such existed, would constitute no defense. (Coconower v. Stoddard (Ind.) 182 N.E. 466; Bordonoro v. Senk, 147 A. 136, 109 Conn. 428; Grant v. McClelland, 147 A. 138, 109 Conn. 517; Siessenger v. Puth (Iowa) 239 N.W. 46.)

J. H. Blandford and Harry Benoit for respondents Salt Lake Hardware Company and Stephen S. Lynch.

The giving of instructions Nos. 6 and 8, defining contributory negligence, was not error.

a. Contributory negligence of a gratuitous guest, injured in an automobile accident, is a proper defense and a question for the jury. (Dillon v. Brooks, 51 Idaho 510, 6 P.2d 851; Dale v. Jaeger, 44 Idaho 576, 258 P. 1081; Evans v. Davidson, 58 Idaho 600, 77 P.2d 661; McCoy v. Krengel, 52 Idaho 626, 17 P.2d 547.)

Where the case is tried on the theory that contributory negligence was a defense and appellants requested instructions accordingly, appellants will not be heard to assert a contrary contention on appeal. (French v. Tebben, 53 Idaho 701, 27 P.2d 475.)

Where the jury has heard the testimony, oral and documentary, the giving of instructions No. 6 and No. 8, if error, was harmless and not prejudicial to the appellants. (Jakeman v. Oregon Short Line R. R. Co., 43 Idaho 505, 256 P. 88; Packard v. O'Neil, 45 Idaho 427, 262 P. 881; 42 C. J. 1288, Sec. 1165.)

J. F. Martin for respondent Mabel M. Bellville.

A guest assumes the normal and ordinary risks attendant upon riding in an automobile, and it is the duty of the guest to warn the driver if, under the same circumstances, an ordinary prudent person would be conscious of danger, and a failure to do so will defeat a recovery. (Dale v. Jaeger, 44 Idaho 576, 258 P. 1081; French v. Tebben, 53 Idaho 701, 27 P.2d 475; Dillon v. Brooks, 51 Idaho 510, 6 P.2d 581.)

The instructions of the court should be considered as a whole, and it is not permissible to single out one instruction, unless it is so wrong that it constitutes reversible error in itself. (Marshall-Wells Co. v. Kramlich, 46 Idaho 355, 267 P. 611; White v. Larsen & Shafer, 51 Idaho 187, 3 P.2d 994; Hard v. Spokane Int. Ry., 41 Idaho 285, 238 P. 891.)

It is the duty of any party litigant to request such instructions as he desires given, and error cannot be predicated upon the failure of the court to instruct the jury, where no request was made. (Evans v. Davidson, 58 Idaho 600, 77 P.2d 661.)

HOLDEN, C.J. AILSHIE, J. (Concurring specially).

OPINION

HOLDEN, C.J.

On the evening of October 31, 1941, the Business and Professional Women's Club of Twin Falls, Idaho, held a Halloween party at the home of one of its members about a mile north of Hansen, Idaho, on what is locally known as the Hansen Bridge Road. Respondent, Mabel M. Bellville, drove her car to this party taking along with her, as gratuitous guests, Mrs. Ella P. George, Mrs. Bessie Weinrich, Mrs. Temple Dawson and Mrs. Belle Green. Respondent and her guests left the party at about 11:00 o'clock p. m. On the return trip, Mrs. George rode in the front seat with respondent Bellville, driver of the Bellville car. In the rear seat were Mrs. Weinrich, Mrs. Green and Mrs. Dawson, the latter sitting between Mrs. Weinrich and Mrs. Green. Respondent Bellville drove south from the party to the corner at Hansen where U.S. Highway No. 30 and the Hansen Bridge Road intersect. It was a rainy, misty, dark night. Almost immediately after entering the intersection, the Bellville car was struck by another car driven by respondent Stephen S. Lynch, employed by the Salt Lake Hardware Company as a travelling salesman. As a result of the injuries sustained, Mrs. Dawson died shortly after the accident.

December 15, 1941, this action was commenced by Frank C. Dawson, surviving husband of the said Temple Dawson, joined by Robert Dawson, Millard Dawson and James Dawson, children of Frank C. and Temple Dawson, against the Salt Lake Hardware Company, Stephen S. Lynch and Mabel M. Bellville to recover both general and special damages alleged to have been sustained as a result of the death of said Temple Dawson. Plaintiffs sought to recover against respondent Bellville under Sec. 48-901, I. C. A. [our guest statute], and against respondents Salt Lake Hardware Company and Stephen S. Lynch on the ground of negligence.

The cause was tried by the court, sitting with a jury, commencing May 25, 1942. May 28, 1942, the jury returned a verdict in favor of defendants and respondents, and on the same day judgment was entered thereon "that plaintiffs take...