Evans v. Davidson, 6518

• Decision Date: 11 March 1938
• Docket Number: 6518
• Citation: 77 P.2d 661,58 Idaho 600
• Parties: PHEBY EVANS, Respondent, v. FRANK G. DAVIDSON and THE BOISE GROCERY COMPANY, INC., a Corporation, Appellants
• Court: Idaho Supreme Court

77 P.2d 661

58 Idaho 600

PHEBY EVANS, Respondent, v. FRANK G. DAVIDSON and THE BOISE GROCERY COMPANY, INC., a Corporation, Appellants

No. 6518

Supreme Court of Idaho

March 11, 1938

AUTOMOBILES-PERSONAL INJURY-DAMAGES-NEGLIGENCE - CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY-LAST CLEAR CHANCE DOCTRINE-INSTRUCTIONS.

1. The supreme court's decision on former appeal that jurors' affidavits showing reasons for rendition of verdict in wife's action as administratrix for her husband's death were inadmissible in wife's personal action for injuries sustained in same accident was "law of case."

2. The jurors' affidavits showing reasons for rendition of verdict in wife's action as administratrix for her husband's death were inadmissible in wife's personal action for injuries sustained in same automobile accident.

3. In automobile occupant's action for injuries sustained in collision between meeting automobiles, where evidence was conflicting as to position of the automobiles on highway questions of negligence of defendants and contributory negligence of occupant were for jury.

4. In action to recover damages resulting from alleged negligence if facts are such that more than one reasonable conclusion or inference can be drawn from circumstantial facts in evidence if the jury decides that negligence has been shown, the jury's action should not be disturbed.

5. In automobile occupant's action for personal injuries sustained in collision between meeting automobiles, whether driver of automobile in which occupant was riding was under influence of intoxicating liquor was for jury.

6. In automobile occupant's action for injuries sustained in collision between meeting automobiles, allegations in complaint that a defendant was driving automobile at dangerous and excessive speed and with a wanton and reckless disregard of rights of others and answer denying negligence of defendants and alleging that accident was directly caused and contributed to by fault, carelessness, negligence, and recklessness of occupant were sufficient to put in issue last clear chance of defendants to have avoided accident.

7. The last clear chance doctrine may be applied even where concurrent or contemporaneous negligence by plaintiff is charged.

8. In automobile occupant's action for injuries sustained in collision between meeting automobiles, last clear chance of defendant to have avoided accident was for jury.

9. Appellants, desiring additional instructions on features of case covered too generally by instructions given, were under duty to present desired instructions to trial court.

10. The giving of instructions not founded on issues will not warrant reversal where no substantial injury resulted.

11. In automobile occupant's action for injuries sustained in collision between meeting automobiles, the giving of instructions defining duties and driving speed at crossings of electric, steam, and street railways and in passing schoolhouses or children going to or leaving school, or at highway intersections and when driver's view is obstructed, although not founded on issues, did not warrant reversal since no substantial injury resulted.

12. In automobile occupant's action for injuries sustained in collision between meeting automobiles, action of court in instructing jury regarding law applicable to guest riding in automobile was not error where defendants by answer charged that occupant was negligent as a guest.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Action for damages for negligence. Judgment for plaintiff. Affirmed.

Affirmed, with costs to respondent. Petition for rehearing denied.

Richards & Haga, for Appellants.

The oral testimony of the jurors was offered for the purpose of explaining a general verdict which was rendered uncertain by the decision of this court on the former appeal. Obviously the verdict and judgment concluded some issues, and the proof offered, and excluded by the trial court, was solely for the purpose of identifying the issues decided in the administratrix' case, so that the time of the court and of the parties would not again be consumed in a retrial of issues that had been finally and conclusively determined in that case. Under such circumstances it often becomes necessary to show by oral testimony what particular issues were determined. (Converse v. Colton, 49 Pa. 346, 352; Carmony v. Hoober, 5 Pa. 305; Piatt v. St. Clair's Heirs, 6 Ohio Rep. 227.)

Where there is no conflict in the evidence on any essential point and there is no substantial evidence to support the verdict of the jury, it becomes a question of law and not of fact, and it is the duty of the court to reverse the judgment. ( Clarke v. Blackfoot Waterworks, Ltd., 39 Idaho 304, 228 P. 326, and cases therein cited.)

Where the evidence is uncontradicted,

(a) That respondent's husband, who was driving the car, was under the influence of intoxicating liquor,

(b) That he was driving on the left half of the highway in the direct path of the car of appellant Davidson,

(c) That the accident occurred because respondent and her husband did not turn to the right to pass the Davidson car until it was too late;

It follows as a matter of law that the accident occurred because of the reckless driving of respondent and her husband, and the verdict in respondent's favor is therefore against law, is not supported by the evidence, and must be set aside. (Secs. 48-502, 48-503, 48-509, 48-511, I. C. A.; Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A. L. R. 317.)

The last clear chance doctrine has no application where there is concurrent or contemporaneous negligence by plaintiff. It applies only where plaintiff cannot, and the defendant can, prevent an injury. (Hickey v. Smith, 277 Mich. 123, 268 N.W. 833; Palmer v. Tschudy, 191 Cal. 696, 218 P. 36.)

Under the last chance doctrine a plaintiff must prove he is in a position of danger from which he cannot escape by the exercise of ordinary care, and that defendant is aware of plaintiff's dangerous situation and of his inability to escape therefrom, and that defendant had a clear chance to avoid injuring plaintiff by exercise of ordinary care and failed to do so. (Curtis v. Pacific Elec. Ry. Co., 15 Cal.App.2d 580, 59 P.2d 890; Landis v. Wick, 154 Ore. 199, 57 P.2d 759, 59 P.2d 403.)

The essence of the rule is that it is applicable only where the defendant, notwithstanding plaintiff's negligence, has a clear chance, after realizing that the plaintiff cannot escape, to avoid the accident by the exercise of ordinary care, and where the plaintiff cannot avoid it by the use of such care. Last clear chance doctrine never meant a splitting of seconds when emergencies arise, and it was not devised as a last resort to fasten liability on defendants. It penalizes no innocent person. The last chance must be a clear one. ( Rasmussen v. Fresno Traction Co., 15 Cal.App.2d 356, 59 P.2d 617; Gaudette v. McLaughlin, (N. H.) 189 A. 872; Giannini v. Southern P. Co., 98 Cal.App. 126, 276 P. 618, 623.)

George Donart, James W. Galloway and Maurice H. Greene, for Respondent.

A decision of the supreme court on appeal becomes the law of the case on retrial on all questions passed upon and decided on such appeal. (Brinton v. Johnson, 41 Idaho 583, 240 P. 859: Richards v. Jarvis, 44 Idaho 403, 258 P. 370; Phy v. Edgerton, 44 Idaho 530, 258 P. 545; Crockett v. Johnson, 47 Idaho 497, 277 P. 550.)

The testimony of the jurors who tried a jury case is inadmissible for the purpose of proving the reasons for their rendition of their verdict or the grounds upon which it was based where such verdict is general in its nature and could have been based on any one of several grounds. (Evans v. Davidson, 57 Idaho 548, 67 P.2d 83; 15 R. C. L., subject, Judgments, sec. 553, p. 1053; Freeman on Judgments, sec. 771, p. 1641; Washington, etc., v. Sickles, 72 U.S. 5 Wall. 580, 18 L.Ed. 550; Lawrence v. Hunt, 10 Wend. (N. Y.) 80, 25 Am. Dec. 539.)

Recovery under the last clear chance doctrine is authorized by the pleadings where the complaint alleges negligence of defendant and answer denies it and alleges that the accident was caused by plaintiff's negligence. (Hooker v. Schuler, 45 Idaho 83, 260 P. 1027; Mosso v. Stanton Co., 75 Wash. 220, 134 P. 941, L. R. A. 1916A, 943; Langford v. San Diego Elec. R. Co., 174 Cal. 729, 164 P. 398.)

HOLDEN, C. J. Morgan, J., and Givens, J., concur. Ailshie, J., and Budge, J., did not participate.

OPINION

HOLDEN, C. J.

Between 4 and 5 o'clock in the afternoon of October 24, 1934, a collision occurred between two automobiles on the public highway about six miles north of Cascade, Valley county, Idaho. Ezra Evans was driving one of the cars. He had his wife, the respondent, with him. Appellant Frank G. Davidson, a salesman for the Boise Grocery Company, was the driver and sole occupant of the other car. Respondent Pheby Evans and appellant Frank G. Davidson were seriously injured, and Ezra Evans died in a Nampa hospital within a few days after the accident, from the injuries he sustained.

In December following the accident, Pheby Evans, as administratrix of the estate of Ezra Evans, deceased commenced an action in the district court of Ada county against the appellants. She prosecuted that action in her own behalf and in behalf of the grown children of the marriage, to recover for the loss of the society and companionship of Ezra Evans, husband and father, and for funeral expenses, and damages to the family automobile. Appellants answered and also filed a cross-complaint, in which cross-action appellant Boise Grocery Company sought to recover damages to the automobile appellant Davidson was driving, and Davidson sought to recover...