Edwards v. Walker

• Decision Date: 05 March 1973
• Docket Number: No. 10988,10988
• Citation: 507 P.2d 486,95 Idaho 289
• Parties: Clara EDWARDS and Cliff B. Edwards, wife and husband, Plaintiffs-Appellants, v. John WALKER, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 486

507 P.2d 486

95 Idaho 289

Clara EDWARDS and Cliff B. Edwards, wife and husband, Plaintiffs-Appellants, v. John WALKER, Defendant-Respondent.

No. 10988.

Supreme Court of Idaho.

March 5, 1973.

Stephen C. Batt, Of Gatchel & Batt, Payette, for plaintiffs-appellants.

Dwaine Y. Welch, Payette, Craig Marcus, of Marcus & Marcus, Boise, for defendant-respondent.

DONALDSON, Chief Justice.

This appeal is from a suit for personal injuries that arose out of a rear-end collision which occurred on Highway 95, approximately 2.1 miles south of Payette, Idaho, at 3:00 p. m. on December 10, 1969. The sole issue on this appeal is whether the district court erred in refusing to instruct the jury on the doctrine of last clear chance. Mrs. Edwards, one of plaintiffs-appellants (hereafter, the plaintiff), was driving a 1962 Pontiac with her adult daughter and three small grandchildren as passengers. Mr. Walker, the defendant-respondent (hereafter, the defendant), was driving a 1959 Chevrolet half-ton pickup truck and pulling an empty, single-axle U-Haul trailer. His passengers were his wife and two small children. Previous to, and at the time of, the accident, it was snowing. Defendant, his wife, and the sheriff who investigated the accident testified that it was snowing quite heavily. Plaintiff and her daughter testified that it had been snowing heavily prior to the accident, but that at the time of the accident, it was snowing lightly. Descriptions of the road conditions also varied. Plaintiff testified the road was 'sort of slushy' or 'wet,' but that it was not slick. Her daughter testified that the road was 'slushy, it wasn't too awfully slick.' The sheriff testified that there was slush on the road and the defendant said that the road had 'an inch or two of slush on it,' and was 'slick.' Plaintiff and defendant agree that their range of vision was limited to 300 feet more or less.

At the location of the accident, Highway 95 consists of two northbound and two southbound lanes. Both vehicles were in the right-hand, southbound lane. Mrs. Edwards, the plaintiff, was ahead of Mr. Walker. She testified that she was intending to turn off the highway into an access road to the Riverside Trailer Court. The access road connects with Highway 95 on the east side of the highway. Because of her position in the western-most lane of the highway, plaintiff would have had to cross one southbound and two northbound lanes of traffic in order to reach the access road. Plaintiff testified that she was unable to change to the left-hand, south-bound lane as she neared the access turnoff because of cars, traveling in the same direction, passing her in the left-hand lane. Plaintiff testified that as she neared the access road, she reduced her speed from 35 miles per hour and was going 10 to 20 miles per hour at the time of the impact. Her daughter testified that the speed of the Pontiac when it was hit was 15 or 20 miles per hour. Plaintiff said that she had switched on her turn signal preparatory to turning onto the access road but defendant said he did not see any signal light. Plaintiff further testified that her rear windshield was obscured by snow and fog, so she could not see cars approaching from behind in either lane, and that she was rolling down her window to look for an opportunity to turn left across the highway into the access road when defendant's truck struck her car from behind. Other than the occupants of the two vehicles, there were no eyewitnesses to the accident.

The access road to the trailer court is located approximately one-tenth of a mile south of the bridge on which Highway 95 crosses the Payette River. The level of the bridge is higher than the level of the highway on the north and south sides of the river. Defendant testified that he was traveling at a speed of 35 miles per hour with his headlights on low beam, and that he first saw plaintiff's car ahead of him after he had crossed the bridge, when the car was 300 feet away, but he assumed that the car was moving. He said that he observed that the plaintiff's car was stopped when he was 100 to 200 feet away, and at that point shifted down into second gear, tapped his brakes and steered his truck to the right, aiming for a turnoff into the bordering orchard. The accident occurred before he was able to reach the turnoff. He explained that he could not have swerved into the left alne to pass the plaintiff on the left because 'traffic was pretty heavy there coming around me.' He said he could not veer sharply to the right because of the bordering orchard and that he did not apply his brakes firmly because the truck 'would have skidded out of control and wouldn't have slowed down.'

Defendant testified that at the point of impact, his truck was going about five miles per hour. In his oral deposition which was read into evidence at the trial, the investigating sheriff testified with regard to the amount of force with which the vehicles came together that, 'There was no great amount of speed in it,' and that he observed 'very little' damage to plaintiff's automobile. Plaintiff's daughter testified that from the moment when she heard the truck behind them to the moment when plaintiff's car was struck, the revolutions per minute of the defendant's engine remained constant. Although plaintiff and her daughter claim that plaintiff's car was struck two or three times, defendant says there was only one impact, after which the Pontiac did not move. Defendant testified that after the impact he put his pickup in reverse and 'backed away a little so I could tell what kind of damage was done * * *.' The sheriff testified that when he arrived at the scene, the vehicles were four of five feet apart. He testified that the only debris he found indicating a collision was under the pickup. He said there was no other debris that he knew of, but that it was 'possible' that there was other debris north of the final stopping place of the vehicles.

Mrs. Edwards and her husband sued Mr. Walker for personal injuries to Mrs. Edwards and other damages, alleging that negligence on the part of Mr. Walker was the proximate cause of the accident. Mr. Walker's answer denied negligence on his part and alleged that plaintiff's injuries and other damages were proximately caused by her own negligence. The case was tried to a jury and from a judgment in favor of Mr. Walker, the Edwards have appealed. They assign as error the district judge's refusal to instruct the jury on the doctrine of last clear chance. The applicability of the doctrine of last clear chance is at issue in this case, notwithstanding the recent enactment of comparative negligence statutes in Idaho, because the instant cause of action arose before the effective date of the comparative negligence statutes. No law in this state is to be applied retroactively, absent a clear indication of legislative intent to the contrary. Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968); I.C. § 73-101.

The elements necessary for the application of the doctrine of last clear chance, as stated by the plaintiff are: '(1) that the plaintiff, by his own negligence, has got(ten) himself into a position of danger; (2) as a result thereof, it is physically impossible for him to escape by the exercise of ordinary care, or he is totally unaware of his danger and for that reason cannot escape; (3) that defendant has actual knowledge that plaintiff is in such situation and knows, or in the exercise of ordinary care, should know, that plaintiff cannot escape from such situation; (4) that defendant has a last clear chance to avoid (the) accident by exercising ordinary care and fails to do so.' This statement of the doctrine is in harmony with recent Idaho cases on the subject. E. g., Kuhn v. Dell, 89 Idaho 250, 404 P.2d 357 (1965); Cournyer v. Follett, 85 Idaho 119, 376 P.2d 707 (1962); cf. Restatement (Second) of Torts §§ 479, 480 (1965). The instruction requested by plaintiff outlines the doctrine for the jury in substantially similar terms. In Idaho, there must be substantial evidence supporting the application of the doctrine in order to justify the giving of an instruction on last clear chance. McIntire v. Engle, 90 Idaho 63, 66, 408 P.2d 159 (1965); Kuhn v. Dell, supra, 89 Idaho at 253, 404 P.2d 357; Cournyer v. Follett, supra, 85 Idaho at 123, 376 P.2d 707; Allen v. Idaho Power Co., 84 Idaho 309, 314, 372 P.2d 80 (1962). A careful examination of the record in this case does not reveal substantial evidence to warrant the application of the doctrine. We therefore hold that the requested instruction was properly omitted.

In the case before us, there is substantial evidence that the plaintiff had been negligent and that at some point immediately before the accident was in a position of peril from which she was unable to extricate herself. Thus the first two requirements for the application of the doctrine are satisfied. However, once these elements of the doctrine are established,

'There must be proof that the defendant discovered the situation, that he then had the time to take action which would have saved the plaintiff, and that he failed to do something which a reasonable man would have done.' Prosser, Torts 440 (3rd ed. 1964).

The doctrine of last clear chance is not applicable unless the defendant actually discovered and appreciated the plaintiff's peril in time to prevent the plaintiff's injury.

This Court has said that the doctrine of last clear chance,

'implies thought, appreciation, mental direction and lapse of sufficient time effectually so to act as to save another from injury to which he has negligently exposed himself. Kuhn v. Dell, supra, 89 Idaho at 256, 404 P.2d at 361.

The third and fourth elements of the doctrine of last clear chance are closely interrelated. Whether the defendant had a...