Geist v. Moore

• Decision Date: 22 July 1937
• Docket Number: 6408
• Citation: 58 Idaho 149,70 P.2d 403
• Parties: NELLIE I. GEIST and NELLIE I. GEIST, as Guardian Ad Litem for CLYDE GEIST, JUNE GEIST and MARIAN GEIST, Minors, Respondents, v. F. J. MOORE and MARY MCKINNIS, Appellants
• Court: Idaho Supreme Court

70 P.2d 403

58 Idaho 149

NELLIE I. GEIST and NELLIE I. GEIST, as Guardian Ad Litem for CLYDE GEIST, JUNE GEIST and MARIAN GEIST, Minors, Respondents, v. F. J. MOORE and MARY MCKINNIS, Appellants

No. 6408

Supreme Court of Idaho

July 22, 1937

AUTOMOBILES-ACCIDENT TO PEDESTRIAN-DEATH - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE-INTOXICATION-DUE CARE-PRESUMPTION-LAST CLEAR CHANCE-INSTRUCTIONS-EXCESSIVE VERDICT, MODIFICATION OF-UNDERTAKING ON APPEAL-WAIVER OF OBJECTION-RECORD ON APPEAL, SUFFICIENCY OF.

1. Failure to file statutory notice of defect in undertaking in appeal from two judgments and two orders which were referred to as "undertaking in said appeal," within 20 days waived defect (I. C. A., sec. 11-203).

2. Improper inclusion in reporter's transcript of certain affidavits upon which no assignments of error were based was not ground for dismissing appeal.

3. Where there were certificates as to the papers used by the trial court in denying motions for new trial and for judgment notwithstanding the verdict, a motion to dismiss appeals from the trial court's orders denying the motions because of their improper inclusion in the reporter's transcript was denied, although the scope of the appeal was limited to a consideration of the papers used by the trial court.

4. Where there was no order of the trial court settling the transcript, but respondents had acknowledged service thereof and no suggestion was subsequently made that transcript was incorrect, as required by statute, motion to dismiss appeal for alleged improper inclusions and omissions was denied. (I C. A., sec. 7-509.)

5. Letter of trial court expressing opinion that damages rendered were excessive and due to prejudice was not properly in the transcript and hence not binding on supreme court.

6. The trial court may order an alternative remission if the verdict is excessive.

7. Twenty-five thousand dollars damages in action by wife and three minor children for death of 40 year old husband with earning capacity of $150 per month and a life expectancy of 29.3 years was not so excessive as to justify new trial on ground it was result of passion or prejudice.

8. An instruction covering statutory requirement that automobile headlights be adjusted to furnish visibility 200 feet ahead was not improper under the pleadings and evidence, as introducing for jury's consideration a question not in dispute. (I. C. A., secs. 48-545 (a), 48-547 (a).)

9. Whether pedestrian was intoxicated at time he was struck and fatally injured by automobile on public highway at night was for the jury.

10. Intoxication does not of itself constitute contributory negligence, but an intoxicated person is held to the same degree of care as one not intoxicated.

11. Where there are no eye-witnesses, a person accidentally killed is presumed, in absence of circumstances clearly to the contrary, to have been exercising due care.

12. Where there are eye-witnesses to an accidental killing evidence which is clear, convincing, and uncontradicted will prevail as a matter of law over the presumption that the person killed was using due care, but if reasonable minds might differ as to the conclusions to be drawn from evidence opposed to the presumption, it is proper to instruct the jury as to the presumption.

13. An instruction that pedestrian accidentally killed by automobile on highway at night was presumed to have used due care was not improper under the evidence.

14. Whether operators of automobile which struck pedestrian on highway at night were negligent, whether pedestrian was contributorily negligent, and whether after operators of automobile discovered pedestrian in place of peril from which he could or could not extricate himself there was time opportunity, or chance for operators to have saved pedestrian by the exercise of due diligence and care was for the jury under a proper instruction as to last clear chance.

15. Alleged error in examination of various jurors on voir dire as to their connection with any insurance company to which no objection was made at the time nor any ruling of trial court invoked was not ground for complaint on appeal.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai county. Hon. Bert A. Reed, Judge.

Action for damages. Judgment for plaintiffs. Affirmed.

Affirmed. Costs awarded to respondents. Petition for rehearing denied.

Wm. S. Hawkins and Robert E. Brown, for Appellants.

In an action to recover damages for personal injuries where contributory negligence is pleaded as a defense, the plaintiff cannot recover when it is proven by the evidence that the negligence of the plaintiff was a proximate cause of the injuries, notwithstanding the fact that evidence may also show negligence on the part of the defendant. That is, to prevent a recovery by reason of contributory negligence the person injured must have been guilty of want of ordinary care and that such want of care was a proximate cause of the injury and that need not be the sole and proximate cause. (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Pilmer v. Boise Traction Co., 14 Idaho 327, 94 P. 432, 125 Am. St. 161, 15 L. R. A., N. S., 254; Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347.)

The plaintiff is not entitled to such a presumption as is set forth in Instruction VI where there were eye-witnesses to the accident who were able to testify as to the conduct of the injured party. (Tegtmeyer v. Byram, 204 Iowa 1169, 216 N.W. 613; Brown v. McAdoo, 195 Iowa 286, 188 N.W. 7; Weber v. Pittsburgh & W. V. Ry. Co., 300 Pa. 351, 150 A. 624.)

Where a pedestrian was in a position of safety and, with an automobile slowly approaching, darted from such position directly in front of the car, there was no last clear chance for the driver to avoid the accident. (Gimeno v. Martin, 64 Cal.App. 154, 220 P. 1076.)

Where a pedestrian, intending to cross a street, saw an automobile approaching and proceeded to cross without again looking and was struck by the car when it skidded on wet pavement, his contributory negligence continued to the very instant of the injury and the last clear chance rule did not apply. (Palmer v. Tschudy, 191 Cal. 696, 218 P. 36; Young v. Southern P. Co., 189 Cal. 746, 210 P. 259.)

Whitla & Knudson, for Respondents.

Appellants having invited the jury to return a verdict for the full amount cannot complain because they did so.

Second, the amount was justified under the evidence. The action was by the wife and three small minor children. The husband was 40 years of age and was earning and had been earning for some time $ 150 per month. He had a life expectancy of 29.3 years. That was stipulated. His total earnings during that time would have been $ 43,500 or $ 1,800 a year. The wife and the three minor children lost the society and companionship of a father and a husband besides suffering the damages shown.

There is no exact rule by which such damages can be measured but the following cases well illustrate amounts allowed and sustained where the proof of damages was not nearly so conclusive as in this case. (Staub v. Rocky Mountain Bell Tel. Co., 23 Idaho 314, 129 P. 1078.)

The husband and father was only earning $ 85 per month. He was 32 years of age, had a wife and two children and $ 15,000 was held not excessive. (Maloney v. Winston Bros. Co., 18 Idaho 740, on page 752, 111 P. 1080; Maw v. Coast Lumber Company, 19 Idaho 396, 114 P. 9; Davis v. North Coast Transp. Co., 160 Wash. 576, 295 P. 921.)

If the defendants were driving the car, and there was fog, it was their absolute duty to keep the car at a rate of speed so it could be stopped within the range of its lights. If they did not do this it would be negligence. (Lauson v. Town of Fond Du Lac, 141 Wis. 57, 123 N.W. 629, 135 Am. St. 30, 25 L. R. A., N. S., 40.)

Counsel cites a number of cases relative to instruction of presumption of due care of one killed in an accident. Here no one who saw the accident excepting the defendants themselves. The fact that the party who is responsible for the accident sees it can never be held to prevent the operation of the presumption. This court has already passed directly upon this question many times.

To instruction No. 6 the court added this statement:

"This presumption, however, may be removed by evidence."

That was at least all if not more than the defendants were entitled to. (Randolph v. Hunt, 41 Cal.App. 739, 183 P. 358; Graves v. Northern Pacific Ry. Co., 30 Idaho 542, 166 P. 571; Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 897; Branson v. Northern P. Ry. Co., 55 Idaho 220, 41 P.2d 629; Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 239 P. 708.)

Many states have curtailed and limited this doctrine [last clear chance] to such an extent that it is of little force and effect but in Idaho there is no limitation upon the doctrine and it is fully sustained in every particular. The following cases fully illustrate the applicability of the doctrine of last clear chance as applied to the driver of an automobile: Girdner v. Union Oil Co., 216 Cal. 197, 13 P.2d 915; Bailey v. Wilson, 16 Cal.App.2d 645, 61 P.2d 68; Smith v. Pacific Greyhound Co., 139 Cal.App. 696, 35 P.2d 169; York v. Alho, 52 Idaho 528, 16 P.2d 980.

J. F. Martin, Amicus Curiae.

When the trial court determines that a verdict has been rendered by reason of prejudice on the part of the jury, the error cannot be cured by the requirement of a remittitur in whose favor the verdict was rendered, but a new trial should be granted. (McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, 156 P. 115, Ann. Cas. 1918A, 380; Chester Park Co. v. Schulte, 120 Ohio St. 273, 166 N.E. 186; Schendel v. Bradford, 106 Ohio St. 387, 140 N.E 155; World Oil Co. v. Hicks, (Tex. Civ. App.) 75...