Feeny v. Hanson

• Decision Date: 25 April 1962
• Docket Number: No. 9016,9016
• Citation: Feeny v. Hanson, 371 P.2d 15, 84 Idaho 236 (Idaho 1962)
• Parties: T. L. FEENY and Shirley M. Feeny, husband and wife, Plaintiffs-Respondents, v. William HANSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 15

371 P.2d 15

84 Idaho 236

T. L. FEENY and Shirley M. Feeny, husband and wife, Plaintiffs-Respondents, v. William HANSON, Defendant-Appellant.

No. 9016.

Supreme Court of Idaho.

April 25, 1962.

J. F. Martin, C. Ben Martin, Boise, for appellant.

Langroise & Sullivan, Boise, for respondents.

KNUDSON, Justice.

For approximately eight years appellant owned and operated a restaurant in Glenns Ferry, Elmore County, known as Hanson's Cafe. The front of the cafe, being the northerly end of the building, is approximately 42 feet wide and the main entrance is on the northwest corner. Adjacent to the building, along its northerly side, is a sidewalk 4 feet wide. 9 feet, 9 inches north of said sidewalk, and parallel thereto, is a concrete island approximately 15 feet long and 31 inches wide, which is centered in front of the building. The concrete island was originally constructed as a base for gasoline pumps and is 13 1/2 inches high at each end and 8 inches high throughout the middle 10 feet thereof. The pumps were removed several years prior to the appellant's occupancy of the property, leaving the concrete base. Appellant's property is bounded on the north by a sidewalk which is approximately 15 feet north of said island and the entire area north of the cafe is surfaced and used as a driveway and parking area for appellant's patrons.

During the evening of April 8, 1959 respondents parked their car, headed west, in the lane south of the island and 4 or 5 feet easterly thereof. Later that evening respondent Mrs. Feeny left the cafe via the main entrance, walked along the sidewalk next to the building and got into her car. Respondent turned on the lights and backed her car a few feet before going forward and turning to the right, until the right front wheel of her car struck the concrete island causing the steering wheel to turn and injure respondent's hand. This appeal is taken from the judgment for respondent and the order denying and overruling appellant's motion for judgment notwithstanding the verdict, also from an order denying appellant's motion to retax costs.

Appellant has assigned as error the giving of instructions numbered 4 and 11-A. Instruction No. 4 reads as follows:

'Plaintiffs in this action claim damages for personal injuries to Shirley M. Feeny alleged to have been suffered as a proximate result of negligence upon the part of defendant.

'Plaintiffs allege that defendant's conduct at the time and place in question was negligent in the following particulars, to-wit: In maintaining and permitting to remain in the parking and drivein area to defendant's restaurant, a large concrete obstruction, which was dangerous to defendant's patrons, without placing any warning or signs thereon and without having adequate lighting to make such obstruction visible at night.

'Defendant denies any negligence on his part, and alleges by way of affirmative defense that any injury or damage suffered by the plaintiffs were proximately caused as the result of negligence of the plaintiffs and not by any negligence on the part of the defendant.'

By this instruction the court undertook to state the issues as framed by the pleadings. The statement regarding respondent's allegations of negligence on the part of appellant is correct, however, appellant complains that the instruction does not state that such allegations are denied. Although appellant's denial could have been more specifically stated, the instruction is not misleading.

By instruction No. 11-A the jury is correctly instructed that the duty to keep the premises safe for an invitee extends to all portions of the premises which it is necessary and convenient for the invitee to visit or use in pursuing the course of business for which the invitation was extended and at which his presence should reasonably be anticipated or to which he is allowed to go.

Error is assigned to the court's refusal to give appellant's requested instructions numbered 2, 3, 4 and 5. Appellant argues that these requested instructions 'covered in general the same idea, that is to say, that one driving an automobile into a stationary object which he could have seen, and nothing to prevent his seeing it had occurred, is guilty of negligence'. Appellant contends that the court should have given at least one of them since the nearest the court came to instructing on the subject covered by said requested instructions is stated in instruction No. 12, which we quote:

'General human experience justifies the inference that when one looks in the direction of an object clearly visible, she sees it. When there is evidence to the effect that one did look, but did not see that which was in plain sight, if such evidence is altogether true, it follows that the person was negligently inattentive. However such evidence may not be altogether true.

'The person in question may not have looked or circumstances may have existed that prevented an object which otherwise would have been in plain sight from being so or that prevented the person in question, and would have prevented a person of ordinary prudence in the same situation, from reacting to his perceptions as she otherwise would have done.

'You must resolve the conflicts, if any, that exist in the evidence in respect to these matters, drawing such inferences as seem to you to be reasonable.'

There is merit to appellant's contention. Instruction No. 12 is in part confusing and ambiguous.

Respondent Mrs. Feeny testified that upon leaving the cafe she walked easterly along the sidewalk next to the building to her car, then entered the car, turned on the headlights and backed her car a few feet before going forward and turning right until the car struck the concrete island. She also testified that while pursuing such course she at no time saw the island. In view of such evidence appellant is clearly entitled to have the jury properly instructed as to respondent's duty in driving her automobile and to observe that which was in her path.

Under the law respondent was required to exercise the same degree of care that an ordinarily prudent person would exercise under the circumstances and she must see any object in her path which an ordinarily prudent driver under like circumstances would have seen. O'Connor v. Black, 80 Idaho 96, 326 P.2d 376; Stanger v. Hunter, 49 Idaho 723, 291 P. 1060; Shepard v. Smith, 74 Idaho 459, 263 P.2d 985. No instruction was given which in substance stated the foregoing mentioned rule notwithstanding appellant's request that the following proposed instruction be given, to-wit:

(Appellant's requested instruction No. 4)

'The Plaintiff Shirley M. Feeny is chargeable with driving her automobile in the same manner as a reasonably prudent person under the same or similar circumstances would have done and nothing in the law will excuse her from not seeing that which was plainly visible and what she could have seen had she looked. In other words, members of the jury, the question is this: Would a reasonably prudent automobile driver have driven his automobile into the concrete base under the same circumstances as they existed on the night of April 8, 1959, when Mrs. Feeny drove her automobile into this base? If your answer to this question is in the affirmative then she would not be guilty of negligence. On the other hand, if your answer to the question would be 'no' then Mrs. Feeny was guilty of such negligence as would defeat the Plaintiff's act (right) to recover in this case.'

We do not approve that portion of said requested instruction which we have underscored. However, under the circumstances of this case said requested instruction should have been given after deleting the underscored portion thereof.

Contributory negligence was one of the principal issues involved and we conclude that it was reversible error not to properly instruct the jury regarding respondent's responsibility in driving her car and observing any object in her path at the time of the accident involved.

In this connection, since a new trial will be necessary, we consider it proper to call attention to the last paragraph of instruction No. 6, which provides:

'And the defendant has the burden of proving these issues: That the plaintiffs, or either of them, were negligent and that such negligence was a proximate cause of any injury which plaintiffs may have sustained.'

No evidence tending to establish respondent's negligence was offered by witnesses called by appellant; however, it is urged upon the court that respondent's own testimony had established her negligence contributing to her injury. This Court has clearly recognized and stated the rule to be that proof of negligence upon the part of plaintiff contributing to his injury constitutes a defense no matter when, how or by whom it is made to appear. Bryant v. Hill, 45 Idaho 662, 264 P. 869; Pipher v. Carpenter, 51 Idaho 548, 7 P.2d 589; Burns v. Getty, 53 Idaho 347, 24 P.2d 31; Pittman v. Sather, 68 Idaho 29, 188 P.2d 600. In Bryant v. Hill, supra, the Court said:

'No doubt it is better, in a case where any inference of plaintiff's contributory negligence can be drawn...