Eckman v. Jones
| Decision Date | 09 October 1962 |
| Docket Number | No. 9057,9057 |
| Parties | Kenneth ECKMAN, Plaintiff-Respondent, v. D. M. JONES, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Holden, Holden, Kidwell & Williams, Idaho Falls, for appellant.
Rigby & Thatcher, Rexburg, for respondent.
On August 24, 1960, at about 11:30 a. m., Clarence R. Widdison, an employee of the plaintiff, was driving plaintiff's logging truck and trailer on U. S. Highway 26, near Palisades, Bonneville county, Idaho. The truck and trailer was being driven in a northerly direction at a speed of about 40 miles per hour according to plaintiff's driver and in excess of 50 miles per hour according to the defendant. The truck and trailer was at the time loaded with logs, approximating a gross weight of 70,000 pounds. The truck was overtaking the defendant's car. Plaintiff contends, and his driver so testified, that the defendant signaled for a left-hand turn approximately three hundred feet before reaching the turnoff to Bird's Market; that as defendant's car started its left-hand turn and was approximately halfway across the center line of the highway, the plaintiff's driver steered to the right-hand edge of the paved highway to pass defendant's vehicle on the right; that at that moment, without warning, the defendant veered back into the right lane directly in the path of the plaintiff's vehicle and stopped on the highway; that due to this course of action on the part of the defendant, plaintiff's driver, in order to avoid a collision with defendant's car and because of the decline of the right shoulder of the roadway, swerved his logging truck to the left around defendant's car; and that plaintiff's driver then swerved back to the right to miss a power pole and the truck tipped over onto its left side, causing damage to the truck and trailer.
Plaintiff claims the negligence of the defendant in pulling his car back into the right-hand lane of traffic and stopping without any warning after he had started to make a left-hand turn caused the damages sought to be recovered in this action.
Defendant denies negligence on his part He contends that he had signaled a left-hand turn, but that he did not start to make the turn. Instead, he claims that he stayed in the right-hand lane and when he saw plaintiff's truck 'bearing down' on him at an excessive speed, he remained in his lane rather than make the turn. Defendant further alleges that the plaintiff was guilty of contributory negligence in that the driver failed to have the truck under control; that the driver was traveling in excess of 50 miles per hour in a 45 mile per hour zone; that the driver negligently failed to apply his brakes or reduce his speed; and that, therefore, if plaintiff was damaged, it was because of the negligence of plaintiff's employee.
The parties stipulated the time and place of the accident and that at the time and place of the accident it was daylight and that the weather was cloudy and the road was dry. It was further stipulated the width of the oiled portion of the highway at the place where the plaintiff's truck overturned was twenty-four feet six inches, with an additional three-foot shoulder on each side of the highway. So, too, the parties to this action stipulated the amount of damages and that the posted speed limit at the place where plaintiff's truck overturned was 45 miles per hour. The jury was informed of these stipulations.
At the conclusion of the trial, the jury rendered a verdict for the plaintiff and assessed damages at $5,614.61. Judgment was entered on the verdict and it is from this judgment that the defendant appeals; also from an order denying defendant's motion for judgment non obstante veredicto and for a new trial.
Appellant assigns as error the denial by the trial court of his motion for an involuntary dismissal, made at the conclusion of plaintiff's case. See 2B Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Civil, § 1074, p. 372.
It is stated in 2B Barron and Holtzoff, supra, § 919 at p. 146:
See also Sano v. Pennsylvania R. Co., C.A.3rd, 1960, 282 F.2d 936; Makowsky v. Povlick, C.A.3rd, 1959, 262 F.2d 13. This action was tried before a jury. Because a motion for a directed verdict and a motion for an involuntary dismissal both serve the same function in a jury case, the rule that a defendant waives his right on appeal to assign as error the denial of his motion for a directed verdict, made at the close of the plaintiff's case, when he presents evidence, applies with equal force to a motion for an involuntary dismissal.
Appellant contends that the trial court erred in failing to rule as a matter of law that plaintiff's employee, Clarence R. Widdison, was guilty of contributory negligence and that the defendant was not liable in this case. Appellant contends that the plaintiff's employee was operating the truck in violation of I.C. §§ 49-701 and 49-717, and that this violation constituted negligence as a matter of law. It is upon these same grounds that appellant assigns as error in denial by the trial court of appellant's motions for a directed verdict (in which he renewed his motion for involuntary dismissal); the denial of defendant's motion for judgment notwithstanding the verdict; and the denial of defendant's motion for a new trial.
The statutes that defendant asserts plaintiff's driver violated provide as follows:
'(b) Where no special hazard exists that required lower speed for compliance with paragraph (a) of this section the speed of any vehicle not in excess of the limits specified in this section or established as hereinafter authorized shall be lawful, but any speed in excess of the limits specified in this section or established as hereinafter authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:
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'(c) The driver of every vehicle shall, consistent with the requirements of paragraph (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.'
A review of the record discloses that there is conflicting evidence on the question of whether or not the plaintiff's driver...
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