Faris v. Burroughs Adding Machine Co.

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS, J.
• Citation: Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 282 P. 72 (Idaho 1929)
• Decision Date: 01 November 1929
• Docket Number: 5182
• Parties: ROBERT FARIS, a Minor, by H. J. FARIS, His Guardian ad Litem, Respondent, v. BURROUGHS ADDING MACHINE COMPANY, a Corporation, and GEORGE E. TONKIN, Jr., Appellants

282 P. 72

48 Idaho 310

ROBERT FARIS, a Minor, by H. J. FARIS, His Guardian ad Litem, Respondent, v. BURROUGHS ADDING MACHINE COMPANY, a Corporation, and GEORGE E. TONKIN, Jr., Appellants

No. 5182

Supreme Court of Idaho

November 1, 1929

AUTOMOBILES - NEGLIGENCE - PERSONAL INJURY - DOCTRINE OF LAST CLEAR CHANCE-SPEED-OPINION EVIDENCE-RIGHT OF WAY-INSTRUCTIONS-VERDICT-EXCESSIVE DAMAGES-JURORS-VOIR DIRE EXAMINATION-QUESTIONS CALCULATED TO BIAS VERDICT-INSURANCE OF DEFENDANT-DISCHARGE OF JURORS-PREJUDICE.

1. Remark of plaintiff's attorney during examination of veniremen on trial of personal injury action that he would show there was an insurance company connected with, or interested in, the suit, held not prejudicial where testimony that defendant carried insurance was later admitted without objection.

2. No party is entitled to any particular juryman, unless it is affirmatively shown that other jurors which the litigant was compelled to accept were prejudiced.

3. In action for injuries sustained in automobile collision at intersection, refusing to permit mechanics examining one of wrecked cars to testify by reason of their knowledge of the effect on similar cars of collisions as to the proximate rate of speed the two cars were going when the accident occurred held not error.

4. In action for injuries sustained from automobile collision at highway intersection, whether defendant should or could have turned or applied his brakes, and whether same could have been done in time to have avoided the accident or lessened its consequences, held for jury.

5. That court instructed on rate of speed allowed at intersection in cities, based on Laws 1921, chap. 249, sec. 1, subd. 16, and Laws 1925, chap. 177, sec. 6, though automobile collision occurred at country crossing, held not prejudicial, where court distinguished between rate of speed in city and country.

6. Instruction on question of which car or driver thereof should have right to proceed at intersection held to make omission of sentence that first driver on intersection should have right of way not erroneous.

7. Which car or driver thereof was entitled to right of way at intersection of country roads held question of fact and not of law.

8. In action for injuries sustained in collision of automobiles at highway intersections, that complaint alleged defendant's automobile was driven head-on into and against plaintiff's automobile, whereas evidence showed that plaintiff's automobile hit defendant's automobile held not to disclose a fatal variance.

9. Under C. S., sec. 6895, judgment in personal injury action held properly signed by the judge instead of by the clerk.

10. Verdict of $25,100 for injuries to young man with expectancy of from forty-four to forty-five years, causing him to remain unconscious after accident for eight days, and to be left in condition where it would probably be impossible for him to pursue other than manual labor, and unable to study for professional employment, held not excessive.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

Karl Paine, for Appellants.

The suggestion of respondent's counsel in the presence of the jury that the appellants were protected by insurance was not cured by the court's admonition to disregard it. (Steve v. Bonners Ferry Lumber Co., 13 Idaho 384 388, 92 P. 363, 367; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 124 P. 783; Powers v. Boise City, 22 Idaho 286, 125 P. 194; Kerby v. Oregon Short Line R. R. Co., 45 Idaho 636, 264 P. 377; Yoast v. Sims, 122 Okla. 200, 253 P. 504; Perez v. Crocker, 86 Cal.App. 288, 260 P. 838; Simpson v Foundation Co., 201 N.Y. 479, Ann. Cas. 1912B, 321, 325; 95 N.E. 10.)

The trial court ruled that the speed of the Ford car at the moment of impact as shown by the physical facts, and whether the Ford struck the Dodge, or vice versa, were not subjects of expert testimony. This, we think, was error. (Kinzell v. Chicago etc. Ry. Co., 33 Idaho 1, 13, 190 P. 255; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Carson v. Turrish, 140 Minn. 445, 168 N.W. 349, L. R. A. 1918F, 154; Heidner v. Germschied, 41 S.D. 430, 171 N.W. 208; Luethe v. Schmidt-Gaertner Co., 170 Wis. 590, 176 N.W. 63.)

The true criterion is: On these subjects could the jury have received appreciable help from the witnesses? (4 Wigmore on Evidence, 2d ed., sec. 1923.)

It is thought that the conclusion of the trial court that the last clear chance doctrine was applicable to the facts and circumstances of the case and its interpretation of the doctrine were both erroneous. (Crock v. Magnolia Milling Co., 147 Wash. 589, 266 P. 727; Garrison v. Pearlstein, 68 Cal.App. 326, 229 P. 348; Palmer v. Tschudy, 191 Cal. 696, 218 P. 36; Cady v. Sanford, 57 Cal.App. 218, 207 P. 45; 42 C. J. 1182; Hartley v. Lasater, 96 Wash. 407, 165 P. 107; Walker v. Butterworth, 122 Wash. 412, 210 P. 813; Carlsen v. Diehl, 57 Cal.App. 731, 208 P. 150; Brkljaca v. Ross, 60 Cal.App. 431, 213 P. 290.)

The judgment was signed by the judge, although section 6895 and subdivision 1 of section 6832 indicate that the judgment should have been signed by the clerk.

Scatterday & Stone, Frawley & Koelsch and L. W. Tennyson, for Respondent.

Where there is no evidence or intimation in the record that the jury was actuated by any bias or prejudice in arriving at its verdict or that the instructions given were not in keeping with the evidence adduced, the presumption arises that the damages awarded are not excessive. (Nelson v. Johnson, 41 Idaho 697, 243 P. 647; Cox v. Northwestern Stage Co., 1 Idaho 376.)

Before a verdict can be set aside on the ground of excessive damages, appearing to have been given under the influence of passion or prejudice, such fact must be made clearly to appear to the trial judge. (Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398; Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106, 238 P. 517.)

Even if the remark of counsel in the presence of the jury to the effect that he was advised that a certain insurance company had a pecuniary interest in the result of the action were improper, the same was cured by the admonition of the court to the jury at the time and in its general charge to disregard such statement, and the same is not reversible error. (State v. Jester, 46 Idaho 561, 270 P. 417; Kerby v. Oregon Short Line R. R. Co., 45 Idaho 636, 651, 264 P. 377; Haverland v. Potlatch Lumber Co., 34 Idaho 237, 200 P. 129; Watkins v. Mountain Home Co-op. Co., 33 Idaho 623, 197 P. 247; Theriault v. California Ins. Co., 27 Idaho 476, Ann. Cas. 1917D, 818, 149 P. 719; Nicholas v. Nelson, 80 Cal.App. 590, 252 P. 739; Russell v. Bailey, (Tex. Civ. App.) 290 S.W. 1108; Spoonick v. Backus Brooks Co., 89 Minn. 354, 94 N.W. 1079.)

The opinions of experts must be based upon something more tangible than mere conjecture or speculation, and, if it is apparent that the opinion offered in evidence is necessarily conjectural, it cannot be accepted as proof of any fact, regardless of the expert character of the witness. (Cook v. Stimson Mill Co., 41 Wash. 314, 83 P. 419, 420; Neesley v. Southern P. Co., 35 Utah 259, 99 P. 1067, 1070; Holloway v. Mayor etc. of City of Milledgeville, 35 Ga.App. 87, 132 S.E. 106; Hinderer v. Ann Arbor R. Co. 237 Mich. 232, 211 N.W. 734; Hoover v. Reichard, 63 Pa. Super. Ct. 517.)

Where two cars whose lines of travel intersect are simultaneously approaching a given point on the intersection of their respective highways, the mere fact that the left-hand car is the first to enter the highway intersection does not entitle it to the right of way. (Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 P. 850; Vickerson v. Standard Auto Sales Co., 64 Cal.App. 287, 221 P. 392; Bertschy v. Seng, 181 Wis. 643, 195 N.W. 854; Neumann v. Apter, 95 Conn. 695, 21 A. L. R. 970, 112 A. 350; Fox v. McCormick, 110 Kan. 91, 202 P. 614; 42 C. J., Motor Vehicles, sec. 707, p. 982.)

The Idaho statutes do not require the clerk of the court to sign any judgment whatsoever, and in the absence of statutory requirements, a judgment is valid without the signature of either the judge or the clerk. (Clink v. Thurston, 47 Cal. 21; 33 C. J. 1212-1214.)

GIVENS, J. Budge, C. J., and T. Bailey Lee, J., concur. WM. E. LEE, J., Mr. Justice Varian Dissenting.

OPINION

GIVENS, J.

Respondent in company with a young man named Lamb was driving in a Ford car south on a north and south road which intersected an east and west road on which latter road appellant Tonkin was driving west in a Dodge automobile. Along the side of both highways were high grasses and weeds which obstructed the view and prevented both drivers from seeing the other prior to their entry into the intersection. Both approached the intersection at the same time resulting in a collision in the northwest quadrant of the intersection.

The Ford car was turned over twice and came to rest upside down in the north and south highway on the right-hand side of the road going south, and south of the intersection. The Dodge remained upright, the front end being pushed laterally about 14 inches to the south; it continued 75 or 100 feet beyond the intersection and was brought to a safe stop.

Respondent was pinned beneath the Ford car from which he was taken almost immediately by parties who came upon the scene shortly after the accident. His injuries are detailed hereafter.

His companion Lamb was assisted from the car by appellant Tonkin who, after stopping his car, returned to the scene of the accident.

There was a dispute as to the...