Drury v. Palmer
| Decision Date | 04 October 1962 |
| Docket Number | No. 9077,9077 |
| Citation | 84 Idaho 558,375 P.2d 125 |
| Parties | Alden J. DRURY, Plaintiff-Appellant, v. Max PALMER and Merlin T. Whittle, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Gee & Hargraves, Pocatello, for appellant.
Hugh C. Maguire, Pocatello, for respondents.
Shortly after six a. m., on October 3, 1958, appellant Drury was driving a passenger car west along Fairview road in Franklin County, an oiled road. This road, is intersected by a gravel road known as the County road, which runs generally north and south. The intersection of these two roads was not marked by stop signs or other markers. Respondent Palmer, at the time, in the employ of respondent Whittle, was driving a truck north on the County road. The two vehicles collided near the middle of the intersection, the front bumper of the truck striking the passenger car behind its front left wheel and along the left side of the car. Both drivers were knocked unconscious, Drury being thrown from his car, sustaining fractures of his hip and other injuries.
There were no witnesses, other than the drivers, to the accident itself. Both drivers testified they never saw the other's vehicle until immediately before the accident, although Palmer testified that some time later '* * * Mr. Drury told me that he had seen me and thought he would beat me; thought he would pass before I would, or thought he would beat me at the intersection.'
The roads were dry, clear of other traffic, the morning bright, and the intersection itself clear of obstructions to view. There were buildings on the grounds near three of the four corners of land forming the intersection. In the southeast corner there was a garage on Fairview Road about 33 feet east from the north and south road. A house was some 31 feet southeasterly from the end of the garage. In the southwest corner, there was a house set back from the roads an undisclosed distance. Respondent Whittle's home was in the northwest corner, setting back also an undisclosed distance. The northeast corner was open farming land.
The actual speed of the vehicles at the time of the accident was not definitely ascertained. Mr. Palmer testified: 'I don't know how fast I was driving, but after I drove it several times after I kind of watched the speedometer to see about how fast you could drive it without bumping around too much, and its about 20 miles an hour is the way it felt to me.' He did state, however, that he told the sheriff, 'I remember telling him I was going about 30 miles an hour coming down the road.'
Mr. Drury testified that he had been going about 40 miles an hour before the accident. There was no evidence either driver had applied brakes. Both drivers were thoroughly familiar with the roads and this particular intersection.
The case was tried before a jury which returned a verdict for respondents. Nine members of the jury joined in the verdict which reads:
'We, the Jury in the above entitled cause, find for the Defendants, because of contributory negligence on the part of the plaintiff.'
The underscored portion of the verdict having been added in longhand by the foreman of the jury. Judgment for respondents was entered; appellant's motion for new trial was presented and denied by the court, and this appeal was taken from the judgment and order denying the motion for new trial.
On this appeal, appellant first urges as a basis for reversal that there is no substantial, competent evidence of any causative contributory negligence on Drury's part. He further asserts that no instructions on contributory negligence should have been given at all, first because of lack of evidence, and secondly because the doctrine of contributory negligence should have no application in this type of case.
We do not agree with either of these contentions. As to the contention that there is no evidence of contributory negligence, Sheriff Talbot, one of appellant's witnesses testified: 'He (Mr. Drury) said he figured that he was going about 40 miles an hour at the time of the accident, and that he--if I recall right--he seen the truck just a half a second before it hit him.' On cross-examination, Mr. Drury testified as follows:
The record also discloses that statement by Mr. Drury to Mr. Palmer that Drury thought he would beat Palmer at the intersection. These facts alone are sufficient from which the jury could have found negligence on the part of Mr. Drury that contributed to his injuries in failing to maintain proper lookout. Appellant was under the duty to maintain a lookout for other vehicles approaching the intersection. The duty is not merely of looking, but is one of observation, imposing upon a motorist the necessity of being observant as to the traffic and general situation at or in the vicinity of the intersection. He must look in such prudent and careful manner as to enable him to see what a person in the exercise of ordinary care and caution for the safety of himself and others would have seen under like circumstances. 60 C.J.S. Motor Vehicles § 284c, p. 667; 5A Am.Jur. 678 and 685, automobiles and Highway Traffic § 705, § 712; Shelton v. Detamore, 198 Va. 220, 93 S.E.2d 314; Kerns v. Lewis, 246 Mich. 423, 224 N.W. 647; Barajas v. Parker, 165 Neb. 444, 85 N.W.2d 894. Even if the jury determined that appellant did maintain proper lookout and actually saw the truck, from the facts they could still reasonably have found that appellant failed to act as a reasonably prudent person under the circumstances in attempting to race the truck through the intersection. Under either interpretation, which was for the determination of the jury, contributory negligence could have been found.
Concerning the contention that under no circumstances should contributory negligence be considered as a defense, this doctrine or principle of law has been recognized as a defense in negligence actions even prior to statehood. Snyder v. Viola Mining & Smelting Co., 3 Idaho 28, 26 P. 127. Contributory negligence has been an integral part of the law since that time, and has been legislatively recognized since 1907. S.L.1907, p. 323 § 1. I.R.C.P. 8(c) likewise recognizes this doctrine.
Assignments of error are directed to certain instructions given by the court and the failure of the court to give other instructions requested by appellant, presenting his theory of the case.
No instruction was given, although requested, defining the term 'negligence', nor was any instruction given by the court to the effect that the violation of driving laws of the State constitutes negligence, (unless under the circumstances such conduct was excusable, justifiable or such as might reasonably have been expected from a person of ordinary prudence.) The failure to give instructions on these points was prejudicial to the appellant and constitutes such error as requires a reversal. The theory of this action was based upon negligence; the jury were presented with the precise problem of determining whether the alleged negligence of Palmer, either by a violation of a specific statute, or by a failure to act as a reasonably prudent person would have acted under the circumstances was causative of Drury's injuries; the jury also had to resolve whether there was negligence on Drury's part that contributed to his injuries. The failure of the court to instruct on the principle that noncompliance with a statutory obligation is negligence (see: Howard v. Missman, 81 Idaho 82, 337 P.2d 592; State ex rel. McKinney v. Richardson, 76 Idaho, 9, 277 P.2d 272), and on the principle that negligence can also be the failure of a person to comply with his duty to act as a reasonably prudent person would under the circumstances, made impossible the application...
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Johnston v. Pierce Packing Co.
...964 (1974); Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297 (1964); Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964); Drury v. Palmer, 84 Idaho 558, 375 P.2d 125 (1962); Mundy v. Johnson, 84 Idaho 438, 373 P.2d 755 (1962); Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112 (1959); Graham v. Mil......
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...the respondent Roland A. Kuhn was unable to move his car off the road because it was out of gas and would not start. In Drury v. Palmer, 84 Idaho 558, 375 P.2d 125, this court '* * * It is not only the duty of the operator to look, but it is his duty to see and be cognizant of that which is......
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...(1975) ("[D]river of automobile is held to have notice of that which is plainly visible on highway before him."); Drury v. Palmer, 84 Idaho 558, 564, 375 P.2d 125, 128 (1962) ("It is not only the duty of the operator to look, but it is his duty to see and be cognizant of that which is plain......
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...presumed to have seen a plainly visible object or that which an ordinarily prudent person could or should have seen.' In Drury v. Palmer, 84 Idaho 558, 375 P.2d 125, this court had under consideration an accident which occurred at an intersection and 'Appellant was under the duty to maintai......