Donovan v. Boise City

Decision Date08 March 1918
Citation31 Idaho 324,171 P. 670
PartiesO. U. DONOVAN, Appellant, v. BOISE CITY, a Municipal Corporation, Respondent
CourtIdaho Supreme Court

DAMAGES FOR PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE-NONSUIT.

1. A motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it.

2. Contributory negligence is generally a question of fact for the jury and only becomes one of law, authorizing a nonsuit when the evidence introduced on behalf of the plaintiff is reasonably susceptible of no other interpretation than that the conduct of the injured party 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 the circumstances.

[Mere scintilla of evidence as sufficient to justify submission of cause to jury, see note in Ann.Cas. 1914B, 472]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Action for damages. Judgment for defendant. Reversed.

Judgment reversed. Costs awarded to appellant.

Laurel E. Elam, for Appellant.

The proper inquiry is, admitting all the facts which plaintiff's evidence tends to prove and every inference of fact that can be legitimately drawn therefrom, might different minds reasonably come to different conclusions? If so, a nonsuit is not proper. (1 Hayne, New Trial and Appeal sec. 117.)

"When the facts are disputed, or more than one inference can be fairly drawn from them as to the care, or want of care, of the plaintiff, the question of contributory negligence is for the jury." (7 Ency. of Law, 456; 29 Cyc. 634.)

"The question [of contributory negligence] becomes one of law authorizing its withdrawal from the jury only when but one conclusion can be drawn from the undisputed facts." (Jackson v. Grand Forks, 24 N.D. 601, 140 N.W. 718, 45 L. R. A., N. S., 75, 83; McCarthy v. Clark, 115 Md. 454, 81 A. 12; Nesbitt v. Greenville, 69 Miss. 22, 30 Am. St. 521, 10 So. 452.)

"But if his own proof shows conclusive contributory negligence, he is liable to nonsuit, and if his own proof leaves it doubtful, it is a question for the jury." (Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558; Knight v. Des Moines, 155 Iowa 299, 135 N.W. 1089; Burger v. Missouri P. Ry. Co., 112 Mo. 238, 34 Am. St. 379, 20 S.W. 439.)

"Contributory negligence, being an affirmative defense, cannot be considered on a motion for a nonsuit at the close of plaintiff's main case." (Powell v. Southern Ry. Co., 125 N.C. 370, 34 S.E. 530; Carter v. Oliver Oil Co., 34 S.C. 211, 27 Am. St. 815, 13 S.E. 419.)

On a motion of nonsuit the defendant admits all the facts which the evidence of plaintiff tends to prove, and the evidence must be interpreted most strongly against the defendant. (Later v. Haywood, 12 Idaho 78, 85 P. 494; Colvin & Rinard v. Lyons, 15 Idaho 180, 96 P. 572; Culver v. Kehl, 21 Idaho 595, 597, 123 P. 301; Southern Idaho Adventists v. Hartford F. Ins. Co., 26 Idaho 712, 716, 145 P. 502; Shank v. Great Shoshone & T. F. W. P. Co., 205 F. 833, 841, 124 C. C. A. 35; Pilmer v. Boise Traction Co., 14 Idaho 327, 329, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254.)

S. L. Tipton and Perky & Brinck, for Respondent.

Obviously the plaintiff's evidence may tend to show clearly the existence of contributory negligence, and if this is true, though no more evidence be introduced, the plaintiff cannot win, nor is there any matter for consideration by the jury, since contributory negligence thus shown bars any possibility of recovery. Upon a motion for nonsuit, therefore, there is raised the issue whether, upon a consideration of the plaintiff's evidence and legitimate inferences therefrom, the plaintiff has made out a sufficient case for the jury. (Culver v. Kehl, 21 Idaho 595, 123 P. 301; Lewis v. Lewis, 3 Idaho 645, 33 P. 38.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

This action was commenced by appellant to recover damages for injuries to his person and property resulting from an accident which, he contends, was caused by the negligence and wrongful act of respondent. At the close of the introduction of evidence upon appellant's part a motion for nonsuit was sustained upon the ground that the evidence showed the accident resulted directly and proximately from his own negligence. Judgment was entered accordingly and the case is before us upon appeal therefrom.

It appears that about 9 o'clock on the evening of September 30, 1913, while appellant was riding on a motorcycle in an easterly direction on the south side of Warm Springs Avenue one of the residence streets in Boise City, he collided with a team and wagon in charge of, and being driven by, an employee of respondent along the same side of the street on which appellant was traveling, but in the opposite direction. It further appears that as a result of the collision the team was frightened and trampled upon or kicked appellant; also that some damage was done to his motorcycle. It is his contention that the wrongful act and negligence upon the part of respondent consisted in its agent and employee driving the team, which was being used in street cleaning work, on the wrong side of the street; that had it proceeded on the other side, in the direction it was going, or had it been going in the opposite direction, on the side it occupied, the accident would not have occurred. The evidence further discloses that shortly prior to the collision appellant was traveling about 13 or 14 miles an hour; that his engine began to work badly, by reason of some obstruction in the carburetor, and that in order to correct it he changed from high to low speed and flooded the carburetor, which caused him to look down momentarily, and reduced his velocity to about 8 or 10 miles an hour; that when he was about 75 feet from the place of the accident he looked up and was, at that time, under an arc-light, had returned to high speed and was again going 13 or 14 miles an hour. He testified: "I probably went,...

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