Domingo v. Phillips

• Decision Date: 13 March 1964
• Docket Number: No. 9251,9251
• Citation: 390 P.2d 297,87 Idaho 55
• Parties: Neva C. Ramirez DOMINGO, an individual, and Neva C. Ramirez Domingo, guardian ad litem for Della Etta Remirez Domingo, Plaintiff-Appellant, v. Gaylord PHILLIPS, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 297

390 P.2d 297

87 Idaho 55

Neva C. Ramirez DOMINGO, an individual, and Neva C. Ramirez Domingo, guardian ad litem for Della Etta Remirez Domingo, Plaintiff-Appellant, v. Gaylord PHILLIPS, Defendant-Respondent.

No. 9251.

Supreme Court of Idaho.

March 13, 1964.

Lawrence H. Duffin, Rupert, Richard R. Black, of Black & Black, Pocatello, for appellant.

Parry, Robertson & Daly, Twin Falls, for respondent.

McFADDEN, Justice.

Plaintiff-appellant, Neva C. Ramirez Domingo, instituted this damage action on her own behalf and that of the adoptive minor daughter of herself and her late husband Mateo Ramirez Domingo. She claims damages for the death of her husband, who died from injuries received when he was pinned between a barn door and the rear of defendant-respondent's struck. The cause was tried before a jury, which returned a verdict in favor of the respondent. This appeal is taken from the judgment entered on the verdict. Appellant's assignments of error necessitate a rather detailed statement of the facts developed during the trial.

Respondent Phillips owned a truck he used in hauling of cattle. He had been acquainted with Mr. Domingo for a number of years; at least twice a year for the past ten years he has delivered or picked up cattle at Mr. Domingo's farm, at the request of Mr. Domingo who was engaged in a farming operation, raising sheep and cattle on his premises a few miles southwesterly from Paul, Idaho. Mr. Domingo always assisted in loading or unloading cattle from the truck. The cattle were loaded from a barn, as Mr. Domingo did not have a loading chute. In loading the cattle, the practice was to open the 'dutch type' barn door, which was so divided that the upper and lower halves were suspended independently from each other. The lower portion of the door was opened and set at right angles to the rear end of the truck, and the truck was backed up to it so that the lower portion served as a closure to the left of the truck to keep cattle from escaping to that side. Another guard was used on the right side of the truck. Respondent had a portable ramp under the bed of his truck which was let down, and the cattle when loaded were forced up this ramp into the stock rack of the truck, and when unloaded were forced down the ramp. The tail gate of the truck was not opened until the truck and door were situated for the loading or unloading operation.

Shortly before noon on January 9, 1961, the day of the accident, at Mr. Domingo's request, respondent came to the premises to load cattle. He drove his truck into the yard and backed it toward the barn where the cattle were to be loaded, and stopped. Mr. Domingo came out of the house and respondent opened the left window of the cab and the two of them visited briefly. Mr Domingo then went to the rear of the truck, and respondent backed to within ten or twelve feet of the barn, waiting for Mr. Domingo to open the doors. Respondent looked through the rear window of the cab of the truck; Mr. Domingo opened the barn doors, stood in the door way, and motioned for respondent to again back the truck.

Respondent put the truck in gear, and let it idle backwards to where he thought he should be, then began to brake. The truck came to a halt just as he felt it ease against the door. In backing, respondent kept one foot on the brake and the other on the clutch, and was watching his propress through the left rear-view mirror. Respondent could not see Mr. Domingo in this mirror, but did have his cab window open. Respondent stated he could have heard any audible directions that might have been given, but that he heard none.

After the truck stopped, respondent went to the back to lift the tail gate of the truck and found Mr. Domingo pinned between the lower half of the barn door and the end of the truck. The top half of the door was against the truck; the lower half, pinning Mr. Domingo, was not opened as wide as the top half. Respondent then pulled the truck forward, and went back to Mr. Domingo, and laid him out on the ground, where he died within moments. Respondent then went to the house and told appellant, 'Call for some help! I think I just killed Mateo.' A telephone operator was contacted who notified the authorities and arranged for an ambulance. According to appellant's testimony she asked Phillips how the accident happened and he said, 'I didn't see Mateo, and I'm afraid I went back too fast.' Phillips admits telling her, 'I think I've killed Mateo,' but denies saying he backed the truck too fast. Phillips asserts that on this occasion the preparations for loading were conducted in the same manner as previously.

Appellant's first assignment of error is a general statement that the verdict and judgment are contrary to the evidence and law, which presents in general terms the same issues specifically presented by the other assignments of error.

Appellant claims error in the trial court's denial of her motion to strike respondent's affirmative defenses. The answer alleged as a defense decedent's contributory negligence and that he had assumed the risk of injury. Appellant also assigns as error certain instructions given by the court to the jury pertaining to these affirmative defenses.

A trial court is under the duty to instruct upon every reasonable theory of the litigants that is recognized by law as presenting a basis for a claim for relief or defense thereto, when such theory finds support in the pleadings and the evidence. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60; Wurm v. Pulice, 82 Idaho 359, 353 P.2d 1071, and cases therein cited.

Appellant contends there is no evidence to support respondent's theory of contributory negligence, citing the decision of Larsen v. Jerome Cooperative Creamery, 76 Idaho 439, 445, 283 P.2d 1096, where, in the majority opinion, it was stated:

'Contributory negligence, though generally a question of fact for the jury, becomes a question of law for the court when established facts and circumstances permit only one possible conclusion to be drawn by a reasonably prudent man.'

The facts in the Larsen case differ from those presented here. In the Larsen case the defendant backed his truck 74 feet in a wide arc. The backing commenced from an 8 to 12 inch depression in which the rear wheels of the truck were parked. With the wheels so located the truck was sitting at an angle. The defendant glanced into the right rear-view mirror while the truck was still parked. The view through the mirror was restricted due to the angle of the truck. In backing the defendant glanced only once into the right rear-view mirror. The mirrors furnished no view to the immediate rear of the truck. After backing the defendant drove forward. The body of the deceased boy was discovered a few minutes later at the end of the 74 foot arc. The boy's death was caused from the injuries he received when run over by the left rear dual wheels of the truck. There were no eye witnesses to the tragic event and the defendant was never aware of the boy's presence in the yard. The record was devoid of evidence as to the boy's conduct. By the majority opinion it was held in that case there was no evidence of any contributory negligence, and the cause was reversed for new trial. See also dissenting opinion in Larson v. Jerome, supra; dissenting opinion in Madron v. McCoy, 63 Idaho 703, 718, 126 P.2d 566; Bell v. Carlson, 75 Idaho 193, 199, 270 P.2d 420.

In the instant action there is evidence of the decedent's conduct. Respondent's uncontroverted testimony established decedent's actions in directing the truck to commence backing. Domingo was last seen in a position of safety standing in the doorway; the circumstantial evidence shows that for some unknown reason he left this position of safety. It is our conclusion that an issue of fact was presented requiring submission to the jury of the defense of contributory negligence. State ex rel. Rich v. Fonberg, supra; Wurm v. Pulice, supra.

The giving of an instruction on assumption of risk is also assigned as error. Appellant argues that the evidence fails to support such theory, and specifically asserts that the doctrine of assumption of risk is applicable only to the cases involving a master-servant or a contractual relationship.

For the defense of assumption of risk to be considered, a defendant must show that the plaintiff (or the decedent as in this action) knew the danger, understood and appreciated the risk therefrom and voluntarily exposed himself to such danger. Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651. In the instant action decedent was shown to have been familiar with the loading operations involving his barn, its doors, and respondent's truck. Any ordinary person would have recognized the inherent danger of placing himself between the edge of an open door and a moving truck. While there was no direct testimony as to why the decedent placed himself in such position, the circumstances of this case are sufficient from which the jury could infer that he voluntarily did so. These facts justified the giving of the instruction.

While some cases have indicated that the defense of assumption of risk should be confined to cases involving a master-servant or a contractual relationship (see: Dubiver v. City & Suburban Ry. Co., 44 Or. 227, 74 P. 915, 916, 75 P. 693 (1904); Furbeck v. I. Gevurtz & Son, 72 Or. 12, 143 P. 654 (1914); Rutherford v. James, 33 N.M. 440, 270 P. 794, 63 A.L.R. 237 (1928)), the better reasoned cases have established the general rule that such a defense is not limited to a master-servant or a contractual relationship. Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 265 P.2d 904 (1954); Tucker v. Lombardo, 47 Cal.2d 457, 303 P.2d 1041 (1956); Prosser, Torts, § 55, p. 309 (2d ed. 1955); 38 Am. Jur., Negligence § 171, p. 845, 65 C.J.S. Negligence § 174, p. 848-849. Oregon and New Mexico have overruled the decisions which originally limited application of the...