Foberg v. Harrison

• Decision Date: 04 December 1950
• Docket Number: No. 7647,7647
• Citation: 71 Idaho 11,225 P.2d 69
• Parties: FOBERG v. HARRISON et ux.
• Court: Idaho Supreme Court

Page 69

225 P.2d 69

71 Idaho 11

FOBERG v. HARRISON et ux.

No. 7647.

Supreme Court of Idaho.

Dec. 4, 1950.

Whitla & Knudson, Coeur d'Alene, for appellants.

J. Ward Arney, Clay V. Spear, Coeur d'Alene, for respondent.

SUTTON, District Judge.

Respondent, who was plaintiff below, recovered a judgment against the appellants on account of personal injuries alleged to have been sustained by respondent the night of December 5, 1947, while riding as a guest in defendants' automobile on U. S. Highway No. 10 a short distance west of the city limits of Coeur d'Alene, Idaho, and the matter is here on appeal from that judgment. The appellant makes 33 assignments of error: Assignments 1 and 2 have to do with the pleadings. Assignments 3 to 26 inclusive attack 25 of the 38 instructions given to jury. Assignments 27 to 31 allege error in the Court's refusal to give certain requested instructions. Assignment No. 32 is treated by appellant as being an assignment of error on account of the Court's denying his motion for a new trial. His assignment is insufficient to raise that question, and is at most a charge that the evidence is insufficient to warrant the entry of the judgment. This assignment will not be further noticed than to say there was sufficient evidence to go to the jury. Assignment 33 charges error in the admission of certain alleged hearsay evidence.

Space will not permit a detailed examination of each of the alleged erroneous instructions or of the charges made concerning them. First and foremost of the objections to the given instructions is that by them the jury was given the rule of ordinary negligence instead of the rule contained in the Idaho guest statute, Idaho Code 49-1001, as the measure of plaintiff's right and defendants' responsibility. It is also charged some of the instructions are not correct statements of the law in any case, and that some others have no bearing on the case made by the pleadings and the proof.

Since plaintiff was by her allegations and all of the proof the guest of the defendant at the time of the accident which resulted in her alleged injuries she must recover, it at all, under the burden imposed by said Section 49-1001 I.C.; that is, a showing of ordinary negligence on the part of thd defendant will not suffice. And if the instructions as given permitted the jury to find against the defendant on account of ordinary negligence, then they were prejudicially erroneous. The solution of this problem requires a brief examination of some of the instructions.

Instruction No. 3 informed the jury that the driver of an automobile 'is not negligent' under certain conditions there set forth; Instruction No. 4 told the jury the burden was upon the plaintiff to prove that her injuries 'were proximately caused by the negligence of the defendant to a degree of the defendant having a reckless disregard of the rights of others.'; Instruction No. 5 told the jury that 'negligence is never presumed * * * and the burden of proof * * * is upon the plaintiff to establish negligence on the part of the defendant * * * and if she fails to support her allegations of negligence in this case, she is not entitled to recover.'; Instruction No. 21 reads as follows: 'You are instructed that if you find from competent, preponderating evidence in this case that the negligence, if any, of the defendants was the proximate cause of the injuries to the plaintiff and that the negligence, if any, of plaintiff did not contribute to that injury, you should then find for the plaintiff in such an amount not exceeding the demands of the complaint or the competent evidence in this case, as you believe will fairly compensate for plaintiff's injuries and damage.'; Instruction No. 30 told the jury that if they found 'negligence of the defendant was the proximate cause of the collision' they might consider certain matters in assessing damages; Instruction No. 12 reads as follows: 'The plaintiff in this case claims that the injury to the plaintiff was proximately caused by either intoxication on the part of the defendant or the reckless disregard of the defendant for the rights of others or both such causes. It is for you and you alone to determine from all of the evidence in the case whether or not these two causes, singly or in combination were or were not the proximate cause of the collision. If you find that neither intoxication or reckless disregard of the rights of others on the part of the defendant was the proximate cause of the collision, you should find for the defendant. If you find that either one or both intoxication or reckless disregard of the rights of others on the part of the defendant was or were the proximate cause or causes of the accident, your verdict should be for the plaintiff.'; Instruction No. 20 is a substantial copy of the instruction considered in Pittman v. Sather, 68 Idaho 29, 188 P.2d 600, and has to do with ordinary negligence.

The only specific attempt to define 'reckless disregard' is found in Instruction 15, where it is said 'means a lesser degree of negligence than intentional act.'; and Instruction No. 16, which reads, 'The word 'reckless' as used in the Idaho statute and these instructions is not used as meaning 'conscious indifference', 'wilful disregard', or 'wanton disregard' of the rights of a guest. 'Reckless', as used in these instructions, means 'mindless', 'Negligent', 'thoughtless', 'regardless', 'unconcerned', 'inattentive', 'remiss', 'improvident', 'rash', 'inconsiderate'.

'You will observe that none of the foregoing definitions carries the...