Dewey v. Keller, 9241

• Decision Date: 28 January 1964
• Docket Number: No. 9241,9241
• Citation: 86 Idaho 506,388 P.2d 988
• Parties: Norma DEWEY and Infants John Clyde Dewey, Kathleen Dewey, James Dewey, and Steven Dewey, by Norma Dewey, their Guardian Ad Litem, Plaintiffs-Appellants, v. Roy KELLER, Gem County and Robert Worley, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 988

388 P.2d 988

86 Idaho 506

Norma DEWEY and Infants John Clyde Dewey, Kathleen Dewey, James Dewey, and Steven Dewey, by Norma Dewey, their Guardian Ad Litem, Plaintiffs-Appellants, v. Roy KELLER, Gem County and Robert Worley, Defendants-Respondents.

No. 9241.

Supreme Court of Idaho.

Jan. 28, 1964.

Langroise, Clark & Sullivan, Boise, C. H. Higer, Emmett, for appellants.

Vernon Daniel, Payette, for respondent, Roy Keller.

Louie Gorrono, Emmett, for respondents Gem County and Robert Worley.

McFADDEN, Justice.

Plaintiff Norma Dewey is the mother and guardian ad litem of the minor plaintiffs, and the widow of John C. Dewey, who died from injuries received in an automobile accident December 11, 1957. This action was brought by Mrs. Dewey, seeking compensation for her loss and the loss of her children occasioned by Mr. Dewey's death. Her complaint charges negligence on the part of defendant Roy Keller in parking a house on a public highway during hours of darkness, without any lights, flares or other warning signals; the complaint also alleges defendant Robert Worley was a deputy sheriff of defendant Gem County, and that he was negligent in signalling traffic around the parked house, and in failing to place, or cause to be placed, lights or other devices to warn of the obstruction, and that the county is responsible for his negligence. The county has waived its immunity against liability for damages pursuant to the law applicable at that time. (See S.L.1955, c. 146, §§ 1 and 2. Repealed S.L.1961, c. 330, and comparable section re-enacted by S.L.1961, c. 330, §§ 796, 797, incorporated into Vol. 7A Idaho Code, as §§ 41-3504 and 42-3505). The answers of the respective defendants generally denied the charges of negligence and asserted contributory negligence on the part of Mr. Dewey as the proximate cause of the accident.

Defendant Keller on December 11, 1957, was moving a 60 foot house, sitting on dollies, easterly on Highway 52 toward Emmett, Idaho. The tractor pulling the house broke down, leaving the house on the highway, totally blocking the south lane of the highway, and obstructing the north lane to the extent of about four and a half feet. Keller, in moving the house, had a truck acting as a 'pilot car' to warn oncoming traffic of the obstruction, which truck was being driven by one Mary E. Heil, now Mary Keller. Keller replaced the broken-down tractor with a smaller one being carried on the truck. Before he could move the house, it was necessary to fill the radiator of the smaller tractor. Keller left Mrs. Keller to guide traffic around the house while he went for water. For that purpose she was using a flashlight, it being dark or dusk at the time.

About 6:00 o'clock, p. m., Deputy Sheriff Worley, in response to a call, went to the scene, expecting to find a house in the process of being moved, but instead found the house stopped on the highway. When he arrived at about 6:10 p. m., Keller had not yet returned, and Worley took charge. Keller returned shortly. Finding there were no flares, reflectors or warning devices in either the truck or the tractors, and having none in his own vehicle, Worley then radioed for assistance and the necessary equipment. Keller desired to move the house further down the highway, but Worley refused to permit him to do so. Keller upon his return to the house left his truck, facing the east, in front of the house; Worley placed his vehicle 75 to 100 feet east of the house, with lights focused on the house, and with the red flashing light of his vehicle burning. Worley directed Mrs. Keller to turn the truck lights off to avoid blinding drivers approaching the house from the east. Worley, using a flashlight to warn traffic, stood in the highway so he could observe traffic from both directions. Mrs. Keller also stood in the highway with her flashlight.

In the meantime, decedent John C. Dewey, who resided some miles further west from Emmett, left his home in his Ford vehicle, accompanied by Stanley Harwell. They were going easterly toward Emmett in response to a relative's call concerning an injured child. As they approached the house, which, unknown to them, was blocking their lane of traffic, they observed a flashlight on the left side of the highway. Harwell stated he and Dewey figured someone might be having tire trouble. Shortly after they passed the flashlight, Harwell told Dewey, 'There is a house!' The brakes were applied, but the car did not stop in time to avoid hitting the house, severely injuring Harwell, and fatally injuring Dewey. Worley and Mrs. Keller, at the time, were some 75 to 100 feet to the west of the house and had been signalling the Dewey car with the flashlights. It was totally dark at the time of the accident, and there were no flares, reflectors, or other warning devices indicating the presence of the obstruction.

The jury returned a verdict in favor of all the defendants, on which judgment was entered. It is from this judgment that the appeal was taken by the plaintiffs.

Plaintiffs assign as error the refusal of the trial court to admit in evidence the 1959 edition of the Idaho Drivers Handbook, an official publication of the Department of Law Enforcement. It was offered in evidence for the purpose of rebutting defendants' claim of decedent's contributory negligence.

For such evidence to be admissible it must be shown to be relevant and material. Plaintiffs urge that the handbook was admissible because the chart on the last page could be used as a means of estimating the speed of the Dewey vehicle to rebut defendants' charge of contributory negligence. This chart indicates the distance travelled by a car at various speeds when a driver is faced with an emergency stop. The chart shows the distance the vehicle would travel from the point where the driver first becomes aware of the danger, to the point where he first applies the brakes, this distance being referred to as 'driver's thinking distance'; it also shows the distance the vehicle travels to a complete stop after application of brakes, this being referred to as 'vehicle braking distance'; and by the addition of these two distances, the total distance required to bring the vehicle to a complete stop after the driver becomes aware of the danger.

Plaintiffs contend that Dewey's 'thinking distance' is shown as follows. He became aware of the danger when his vehicle passed Worley (Harwell testified: 'After we got by the light we saw the house, yes'). The skidmarks of the vehicle appeared on the surface of the highway. The distance between the skidmarks and the point where Worley was standing would thus be the 'driver's thinking distance', and applying this measurement to the chart, plaintiffs claim the jury could then estimate the speed of the Dewey car.

The point where Dewey first became aware of the obstruction is not clearly established, nor does the record definitely establish whether the light he or Harwell observed was that of Worley or that of Mrs. Keller; nor is it definitely established where either of these two people were standing in reference to the actual distance from the house, or from the skidmarks. Plaintiffs offered the entire Handbook in evidence, not merely the chart. The court ruled that because of the many uncertain factors involved, admitting the handbook might mislead the jury. It was within the discretion of the trial court to determine if sufficient foundation had been laid to admit the chart. 5 Am.Jur.2d, Appeal and Error, § 881, p. 319; 5A C.J.S. Appeal and Error § 1644, p. 240. Examination of the record does not disclose any error by the trial court in refusing to admit this evidence.

Appellants next assign as error the giving of Instruction No. 12, which reads:

'I instruct you that the law recognizes that men are often confronted by and must act in emergencies. When a man is suddenly confronted by an emergency not due to negligence on his own part, if he acts as a reasonably prudent person under the circumstances would act, he cannot be charged with negligence because in such emergency he may not have done that which now can be seen may have prevented an accident. It is not a question of what was the safest or best thing to do. The question is what, under the circumstances, would a reasonably cautious and prudent person have done.'

This court has recognized that this doctrine is applicable when one who, without fault on his part, is suddenly and unexpectedly placed in a perilous situation, so as to be compelled to act instantly and without an opportunity to exercise deliberate judgment. Under such circumstances he is not chargeable with negligence if in attempting to escape from the peril or to avoid or minimize the threatened injury he acts as a person of reasonable prudence would or might have acted in the same or similar situation. Wheeler v. Oregon R. R. etc. Co., 16 Idaho 375, 102 P. 347; Hamilton v. Carpenter, 49 Idaho 629, 290 P. 724; Stuart v. McVey, 59 Idaho 740, 87 P.2d 446; Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054; Garrett Freightlines v. Sell, 63 Idaho 738, 125 P.2d 1020; Barry v. Arrow Transportation Company, 80 Idaho 447, 333 P.2d 1008.

Plaintiffs properly contend this doctrine had no application under the facts in this case. For such doctrine to be applicable it is essential that the facts shall show a sudden emergency did exist. Barry v. Arrow Transportation Company, supra; Stuart v. McVey, supra; 8 Am.Jur.2d, Automobile and Highway Traffic, § 1030; Sadoian v. Modesto Ref. Co., 157 Cal.App.2d 266, 320 P.2d 583 (1958); Lubliner v. Ruge, 21 Wash.2d 881, 153 P.2d 694 (1944). Here no person charged with negligence or contributory negligence acted within the sudden emergency doctrine. Keller had been confronted with the problem of the house on the highway for some extended period of time prior to the collision and had full opportunity to deliberate upon the situation and determine the course of conduct he was to follow. And it...