Department of Finance of State of Idaho v. Union Pacific Railroad Co.

• Decision Date: 04 June 1940
• Docket Number: 6653
• Citation: 61 Idaho 484,104 P.2d 1110
• Parties: DEPARTMENT OF FINANCE OF THE STATE OF IDAHO; FRANK H. GEISLER, a Sole Trader Doing Business Under the Firm Name and Style of GEISLER BEVERAGE COMPANY, Respondents, v. UNION PACIFIC RAILROAD COMPANY, a Corporation; W. C. RICHMOND, M. P. OCHELTREE and LEVI HANKINS, Appellants
• Court: Idaho Supreme Court

104 P.2d 1110

61 Idaho 484

DEPARTMENT OF FINANCE OF THE STATE OF IDAHO; FRANK H. GEISLER, a Sole Trader Doing Business Under the Firm Name and Style of GEISLER BEVERAGE COMPANY, Respondents, v. UNION PACIFIC RAILROAD COMPANY, a Corporation; W. C. RICHMOND, M. P. OCHELTREE and LEVI HANKINS, Appellants

No. 6653

Supreme Court of Idaho

June 4, 1940

NEGLIGENCE-DUE CARE-PRESUMPTION-EVIDENCE-INSTRUCTIONS-NONSUIT-DIRECTED VERDICT-RAILROAD CROSSING ACCIDENT-WARNING SIGNALS-PROXIMATE CAUSE-CONTRIBUTORY NEGLIGENCE-VIEW OF PREMISES BY JURY-WORKMEN'S COMPENSATION-AWARD-LIABILITY OF THIRD PARTIES.

1. Where there is a conflict between the presumption as to exercise of due care and contrary evidence, from which reasonable minds might draw different conclusions instructing jury as to the presumption is proper.

2. In action for injuries sustained by driver of delivery truck in collision with switch engine at crossing, where testimony of eyewitnesses to establish that driver was not in exercise of ordinary care and was exceeding speed limit was indefinite instructions that, if driver suffered lapse of memory as to collision, driver was presumptively exercising due care and instructions defining prima facie evidence, were proper. (I C. A., sec. 48-504, subd. b. par. 1.)

3. On motion for nonsuit or directed verdict, evidence must be construed in light most favorable to plaintiff.

4. In action for injuries sustained by driver of small delivery truck in collision with switch engine at crossing, evidence supported conclusion that defendants were guilty of negligence which was the proximate cause of injury, in failing to give statutory warning signal upon approaching crossing. (I. C. A., sec. 60-412.)

5. Jury, which was permitted to view premises on which collision between switch engine and delivery truck occurred, was entitled to consider the view in determining weight and applicability of evidence introduced at the trial.

6. The question of contributory negligence is for the jury and is never one of law, unless the facts alleged in the complaint or proven are reasonably susceptible of no other interpretation than that the conduct of the injured party caused, or contributed to, his injury, and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under like circumstances.

7. In action for injuries sustained by driver of small delivery truck in collision at crossing with switch engine on spur track, whether, under the circumstances, driver was contributorily negligent in matter of speed and lookout, was for the jury.

8. A compensation agreement signed by claimant, employer, the Industrial Accident Board, and the state insurance fund by its manager, constitutes a decision and award of the board and has the same effect as an award by the board.

9. The liability or amount of liability of tort-feasor causing injuries to employee is not dependent on amount of workmen's compensation awarded employee or on the fact that compensation has been awarded. (I. C. A., sec. 43-1004.)

10. Railroad's liability for injuries sustained by driver of delivery truck in collision at crossing with switch engine depended on negligence, so that while workmen's compensation had been awarded to driver, and state insurance fund had become liable for its payment, railroad's liability to the Department of Finance and to employer for compensation paid could not be avoided on ground that driver was a minor member of employer's family, and that employer had not, prior to accident, filed with the Industrial Accident Board an election in writing that provisions of the Workmen's Compensation Law should apply to driver. (I. C. A., sec. 43-1004.)

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Action to recover for personal injuries. Judgment for respondents. Affirmed.

Judgment affirmed. Costs awarded to respondents. Petition for rehearing denied.

Geo. H. Smith, H. B. Thompson and L. H. Anderson, for Appellants.

In an action for death, where the evidence discloses the acts and conduct of the deceased immediately prior to and at the time of the accident, the presumption that the deceased exercised ordinary care for his own protection is inapplicable, and it is error to so instruct the jury. (20 Am. Jur. 163, sec. 158, title "Evidence," also, p. 70, note 12; Northern P. R. R. Co. v. Freeman, 174 U.S. 379, 383, 19 S.Ct. 763, 43 L.Ed. 1014; Lindley v. Southern P. Co., 18 Cal.App. (2d) 550, 64 P.2d 490, 494.)

A person who approaches and enters upon a railroad track, in front of an approaching engine, at a speed in excess of 15 miles per hour where his view is so obstructed that as he traverses the last 200 feet he does not have a clear and uninterrupted view of the engine until it is within less than 400 feet of the crossing violates section 48-504, I. C. A., and is prima facie guilty of negligence, which is prima facie deemed a proximate cause of any damage resulting. (Sec. 48-504, I. C. A.; Hamilton v. Carpenter, 49 Idaho 629, 290 P. 724; Meincke v. Oakland Garage, Inc., 11 Cal. (2d) 255, 79 P.2d 91.)

Where the condition of the evidence is such that if the jury should render a verdict in favor of the plaintiff the court would be under the duty of setting it aside, a motion for nonsuit or directed verdict should be granted. (Blackwell v. Kercheval, 29 Idaho 473, 160 P. 741; Haner v. Northern P. Ry. Co., 7 Idaho 305, 62 P. 1038; Polly v. Oregon Short Line R. Co., 51 Idaho 453, 6 P.2d 478.)

The managers of the State Insurance Fund and the Industrial Accident Board are without power or jurisdiction to allow compensation to a member of an employer's family dwelling in his home where the employer has not prior to the accident, made an election in writing and filed it with the board. (Sec. 43-904, I. C. A.; Chicago Circular Adv. Service v. Illinois Ind. Com., 332 Ill. 156, 163 N.E. 408; Kindall v. McBirney, 52 Idaho 65, 11 P.2d 370; Hansen v. Independent School Dist., 57 Idaho 297, 65 P.2d 733; In re Bones, 48 Idaho 85, 280 P. 223.)

Chapman & Chapman, Lionel T. Campbell, J. T. Murphy and C. L. Hillman, for Respondents.

Upon a motion for nonsuit or for a directed verdict the evidence must be interpreted most strongly against the defendant. (Independent Irr. Co. v. Baldwin, 43 Idaho 371, 252 P. 489; Culver v. Kehl, 21 Idaho 595, 123 P. 301; Keane v. Pittsburg Lead Min. Co., 17 Idaho 179, 105 P. 60; Claris v. Oregon Short Line R. Co., 54 Idaho 568, 33 P.2d 348; Manion v. Waybright, 59 Idaho 643, 86 P.2d 181.)

Where the issues of negligence and contributory negligence are fairly and fully submitted to the jury, their findings, if reasonably supported by the evidence, will not be disturbed upon appeal. (Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850; Lott v. Oregon Short Line R. Co., 23 Idaho 324, 130 P. 88.)

The question of contributory negligence is one for the jury, and is never one of law, unless the facts in evidence are reasonably susceptible of no other interpretation than that the conduct of the injured party caused, or contributed to, his injury, and that because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under like circumstances. (Adkins v. Zalasky, 59 Idaho 292, 81 P.2d 1090; Branson v. Northern P. Ry. Co., 55 Idaho 220, 41 P.2d 629, 631; Claris v. Oregon Short Line R. Co., 54 Idaho 568, 573, 33 P.2d 348, 349.

Where a driver of a vehicle is killed or incapacitated so as to be unable to testify as to his exercise of care at the time of the collision or accident, a rebuttable presumption arises that he was acting with due care, which presumption is given effect as prima facie evidence, unless the presumption is satisfactorily rebutted or a fact contrary to the presumption is proved. (Fleenor v. Oregon Short L. R. Co., 16 Idaho 781, 802, 102 P. 897; Adams v. Bunker Hill etc. Min. Co., 12 Idaho 637, 643, 89 P. 624, 11 L. R. A., N. S., 844; Graves v. Northern P. Ry. Co., 30 Idaho 542, 549, 166 P. 571; Davis v. Boggs, 22 Ariz. 497, 199 P. 116; Smellie v. Southern P. Co., 212 Cal. 540, 299 P. 529.)

A third party tort-feasor may not avoid liability in an action brought by a workman's compensation insurance carrier to recover for injury to the employee, after such insurance carrier had made payment pursuant to the employee's claim and an award by the Industrial Accident Board, on the ground that the Industrial Accident Board was without jurisdiction to make the award. (Sec. 43-1004, I. C. A.; Maryland C. Co. v. Union Bridge Elec. Mfg. Co., 145 Md. 644, 125 A. 765; Eber v. Bauer, 252 Mich. 571, 233 N.W. 419.)

BUDGE, J. Ailshie, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

BUDGE, J.

--August 3, 1937, about 6:20 P. M. within the city of Twin Falls at an intersection of U.S. Highway No. 30, known as the "truck lane" and a spur or switch track of appellant railroad a collision occurred between a switch engine of appellant railroad being backed across the truck lane upon the spur track and a small panel delivery truck driven by Marcel Geisler, a minor employed by Geisler Beverage Company the trade name used by Frank H. Geisler, father of Marcel Geisler. The cause was tried before a jury, appellants interposed motions for nonsuit and directed verdict, which were denied, and the jury returned a verdict in favor of respondents for personal injuries received by Marcel Geisler. Judgment was entered and this appeal taken.

Appellants urge that the court erred in giving and submitting to the jury instructions numbered 16 and 17 ^[1] for the reason that there was evidence of eyewitnesses establishing the fact that Marcel Geisler was not in the exercise of ordinary care...