Graham v. Milsap

• Decision Date: 23 November 1955
• Docket Number: No. 8306,8306
• Citation: 290 P.2d 744,77 Idaho 179
• Parties: Chester W. GRAHAM, Ernest H. Graham, a minor, by Chester W. Graham, his guardian ad litem, Wayne R. Graham, a minor, by Chester W. Graham, his guardian ad litem, Plaintiffs-Respondents, v. E. M. MILSAP, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 744

290 P.2d 744

77 Idaho 179

Chester W. GRAHAM, Ernest H. Graham, a minor, by Chester W. Graham, his guardian ad litem, Wayne R. Graham, a minor, by Chester W. Graham, his guardian ad litem, Plaintiffs-Respondents, v. E. M. MILSAP, Defendant-Appellant.

No. 8306.

Supreme Court of Idaho.

Nov. 23, 1955.

Clements & Clements, Lewiston, for appellant.

Cox, Ware & Stellmon, Lewiston, Robert C. Strom, Craigmont, for respondents.

ANDERSON, Justice.

Respondents brought this action to recover damages for the death of Blanche L. Graham, who was killed in a collision between their Plymouth sedan and the truck of appellant on December 29, 1952, on U. S. Highway 95 approximately two miles south of Craigmont, Idaho. Blanche, the wife of respondent Chester and the mother of the other respondents, was driving toward Craigmont, going around a curve, when respondents' car collided with appellant's logging truck, which was being driven by his admitted agent and employee, Stanley F. Bledsoe, in the opposite direction. The parents and the older child, then age three, were riding in the front seat, and the younger child, then age one, was in a makeshift bed in the rear seat at the time of the collision.

Much of the evidence is very conflicting, especially as to who was on the wrong side of the road, where the debris and tire marks were, and the position of the car and the truck at the time of the collision, each party claiming the other's driver was on the wrong side of the road. Respondent Chester Graham testified that he was sitting on the right-hand side of his car and observed shortly before the collision that his car nearly went off the right edge of the oiled pavement. Appellant offered evidence that Graham had stated that he was asleep at the time of the collision, and Graham admitted on cross-examination he might have been asleep prior to the accident. Appellant's driver testified he had an unobstructed view of the entire sequence of events prior to the accident, and that his truck was over on his own side of the road far enough to have his right outside dual tires on the shoulder of the road, and that he saw nothing unusual in the approach of the Plymouth sedan until it was within 20 to 25 feet of the truck, when it crossed the center line. At the place of the collision the highway was 20 feet in width on the hard oiled surface, and had shoulders on both sides beyond the oil of three to five feet in width. The Plymouth and the truck were each going between 35 and 40 miles per hour at the time they collided. The complaint alleges negligence of appellant's driver and lack of negligence on the part of the driver of the Plymouth. The answer of appellant alleges that the driver of the Plymouth was negligent, and that her negligence was the proximate cause of the accident and her death.

The case was tried to a jury, and, after denial of appellant's motion for a non-suit, jury returned a verdict for the respondents. Motions were made by appellant for a new trial and for judgment notwithstanding the verdict. These were denied by the trial court. This appeal was then perfected.

Appellant assigns as error the refusal of the trial court to grant his motion for non-suit and the denial of his motion for a new trial and motion for judgment notwithstanding the verdict, claiming that the evidence was not sufficient to sustain a verdict. As pointed out in the statement of facts above, the evidence is conflicting. A review of the transcript of the testimony discloses that there is sufficient substantial evidence, if believed by the jury, to sustain a verdict for the respondents. This court has several times stated:

'* * * where the minds of reasonable men might differ, or where different conclusions might be reached by different minds, the question as to the existence of negligence and contributory negligence are questions for the jury.' Stallinger v. Johnson, 65 Idaho 101, 111(3), 139 P.2d 460, 465.

The supreme court is not the trier of the facts, and is committed to the rule it will pass on a question of negligence only in clear cases, where the question of negligence is free from doubt. O'Connor v. Meyer, 66 Idaho 15, 23, 154 P.2d 174.

Appellant assigns as error the fact that the court instructed on the last clear chance doctrine and submitted that question to the jury. Appellant contends that this question was not involved because respondents did not admit contributory negligence, and for the further reason that there was no evidence to justify such an instruction. Respondents, on the other hand, contend that appellants, by their answer, injected contributory negligence and the doctrine of last clear chance into the case, and cite Hooker v. Schuler, 45 Idaho 83, 89, 260 P. 1027, 1028, wherein this court said:

'We believe the rule is correctly stated in the case of Mosso v. E. H. Stanton Co., 75 Wash. 220-225, 134 P. 941, 944, L.R.A.1916A, 943, where the court said:

"It is next contended that the court erred in submitting to the jury the question whether the appellant, by an observance of the rule of 'last clear chance,' could have avoided the accident. It is first argued that this rule cannot be invoked because the complaint did not admit contributory negligence on the respondent's part. The answer, however, denied any negligence of the appellant and alleged affirmatively that the respondent's injury was due to his own negligence. This was equivalent to an allegation that contributory negligence of the respondent was the proximate cause of the injury. It was put in issue by the denial in the reply. The rule of last clear chance is grounded in the doctrine of proximate cause. Like any other phase of proximate cause, evidence to sustain it may be submitted to the jury under the general issue. We cannot subscribe to the doctrine that the rule of last clear chance can only be invoked by a plea in confession and avoidance."

The case of McKinley v. Wagner, 67 Idaho 104, 111, 170 P.2d 796, 799, cited by respondents, states:

"* * * last clear chance doctrine is authorized by the pleadings, where the complaint alleges negligence of the defendant and the answer denies it, and alleges that the accident was caused by the plaintiff's negligence."

We are of the opinion that under the pleadings now before us the last clear chance doctrine could be an issue in the case if there were substantial evidence to support it. In this case there was no such evidence. McIntire v. Oregon Short Line R. Co., 56 Idaho 392, 55 P.2d 148; Ineas v. Union Pacific R. Co., 72 Idaho 390, 241 P.2d 1178. The last clear chance rule is clearly stated in 38 Am.Jur., Negligence, sec. 219, p. 905, as follows:

'* * * It has been said that last clear chance implies thought, appreciation, mental direction, and lapse of sufficient time effectually to act upon the impulse to save another from injury. The doctrine is not applicable where the emergency is so sudden that there is no time to avert the accident. Succinctly stated, the last clear chance must be a clear one.'

In Ineas v. Union Pacific R. Co., 72 Idaho 390, 241 P.2d 1178, plaintiffs sought to recover for death of a truck passenger in a railroad crossing accident. Witnesses estimated speed of the train at from 30 to 55 miles per hour. The railroad fireman testified the train was approximately 100 feet from the point of collision when it became apparent the truck driver was going to continue across the tracks. In sustaining judgment for defendants, the court held, 72 Idaho at page 404, 241 P.2d at page 1188:

'* * * the last clear chance cannot operate in favor of deceased unless there remains time after the defendant is reasonably charged with knowledge of deceased's peril for the defendant to prevent the injury. The uncontradicted mathematics of the relative speed of the truck and the train and what their converging positions were, show there was not time for the last clear chance to be applicable. Ross v. Fleming, supra, 165 Kan. 279, 194 P.2d 491 at page 497.'

In McIntire v. Oregon Short Line R. Co., 56 Idaho 392, 55 P.2d 148, the plaintiff sought to recover for injuries he suffered when his car was struck by a train at a crossing. The brakeman testified he saw the plaintiff's peril when the train was 50 to 60 feet from the crossing, and called to the engineer to stop the train. The court noted, 56 Idaho at page 401, 55 P.2d at page 152:

'* * * the evidence shows without dispute or any conflict that the train could not then have been stopped in time to have prevented or avoided the accident.'

The court held it was error to instruct on last clear chance, and reversed the judgment for the plaintiff, saying, 56 Idaho at pages 396-397, 55 P.2d at page 149:

'This court has thus stated the doctrine of last clear chance:

"If the one party (here appellant) knows of the peril of the other (respondent), although brought about by that other's (respondent) negligence, in time to avoid injuring him, he is at once put to a degree of care commensurate with the present situation of the parties.' Short v. Boise Valley Traction Co., 38 Idaho 593, at page 599, 225 P. 398, 399, citing cases.

'Analyzing...