Hackworth v. Davis

• Decision Date: 28 February 1964
• Docket Number: No. 9054,9054
• Citation: 87 Idaho 98,390 P.2d 422
• Parties: Kenneth HACKWORTH, as administrator of the Estate of Vera Weltz, deceased, Plaintiff-Appellant, v. Laurence DAVIS, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 422

390 P.2d 422

87 Idaho 98

Kenneth HACKWORTH, as administrator of the Estate of Vera Weltz, deceased, Plaintiff-Appellant, v. Laurence DAVIS, Defendant-Respondent.

No. 9054.

Supreme Court of Idaho.

Feb. 28, 1964.

Rehearing Denied April 1, 1964.

Stephen Bistline and Bandelin & Cogswell, Sandpoint, for appellant.

Brown & Peacock, Kellogg, for respondent.

McFADDEN, Justice.

The facts disclosed by the record are virtually without dispute. On December 4, 1959, Vera Weltz, a minor, lost her life in an automobile accident a short distance outside Sandpoint, Idaho, on U. S. Highway No. 95. She was riding in the front seat of a sedan owned and operated by Mr. George Cussen, a teacher from Noxon, Montana seated between Mr. Cussen and Robert Cluzen. Mr. Cussen was driving four high school students from Noxon to Spokane, Washington. Occupants of the back seat were Judy Groff and Laraine Bailey.

After going through Sandpoint at about 8:30 A.M., on the morning of the accident, the Cussen car approached and overtook an empty logging truck, travelling in the same southerly direction, owned and operated by Laurence Davis, defendant and respondent herein. The Cussen car began following respondent Davis's truck which had slowed down to about 15 to 20 miles an hour to make a sharp turn on the highway. The Cussen car followed the truck around this turn, onto a straight stretch, and as the truck approached the next curve, Cussen commenced to pass the truck, and passed at about 25 to 30 miles an hour. The highways were icy and slick. After passing the Davis truck, Mr. Cussen drove back into the southbound lane of traffic, and proceeded southerly about a quarter of a mile to the point of the tragic accident.

Respondent Davis was driving his truck four or five car lengths behind the Cussen car, both were travelling about 25 to 30 miles an hour; Cussen and Davis in their respective vehicles observed a line of about four cars coming from the opposite direction at about the same rate of speed. Mr. Cussen testified that a car driven by Elizabeth S. Stanfield, the last car in the line, got out of control about 100 feet from him and skidded across the road into the path of his car, and these two cars collided practically head on. Almost immediately after being struck by the Stanfield car, the Cussen car was struck in the rear by the Davis truck. The front tires of the Stanfield car were observed to be worn smooth. When Cussen saw the Stanfield car go out of control he tapped his brakes gently to avoid skidding; respondent Davis stated he started tapping or 'feathering' his brakes to maintain control. He could not turn to the left because of the other cars in the opposite lane, nor could he turn to the right, for on that side there was a guard rail.

After the accident, decedent Vera Weltz was found on the floor of the Cussen car; her neck was broken and spinal cord severed. Respondent Davis by his answer admitted that she died as a result of the injuries she received in this three vehicle accident.

Service of process on Mrs. Stanfield was not made, and the action was dismissed as to her. The cause was tried on the issues framed by the complaint and respondent Davis's answer. The jury verdict, signed by nine of the jurors, was returned in respondent Davis' favor and judgment entered accordingly. Appellant perfected his appeal from the judgment.

Appellant's first assignment of error is directed to trial court's refusal to direct a verdict in his favor on the issue of negligence, leaving the amount of damages for the jury to determine. He contends that the testimony of respondent Davis to the effect that he followed the Cussen car by four to five car lengths, coupled with the statement, 'I thought it sufficient enough distance for ordinary conditions', and the proof that the conditions at the time of the accident were far from ordinary, constituted a sufficient showing for the trial court to have ruled upon Davis's negligence as a matter of law. The question is whether such a showing is proof of negligence, as a matter of law.

'This court 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, and, therefore, 'unless it is clear that in viewing and considering the evidence reasonable minds might not arrive at different conclusions the case should go to the jury,' and that it is only where the evidence points unerringly to a conclusion as to whether one is guilty of negligence or not that the matter becomes a question of law within the power of an appellate court to decide.' Cogswell v. C. C. Anderson Stores Co., 68 Idaho 205, 211, 192 P.2d 383, 386.

To the same effect see: Graham v. Milsap, 77 Idaho 179, 290 P.2d 744; O'Connor v Meyer, 66 Idaho 15, 154 P.2d 174; Owen v. Taylor, 62 Idaho 408, 114 P.2d 258.

The record discloses that respondent Davis had been over this road earlier the morning of the accident and was returning with his logging truck unloaded. On cross-examination he stated:

'Q. Now, let's establish one more distance. After Mr. Cussen passed you, did you speed up or did you slow down?

'A. I slowed down.

'Q. To what speed?

'A. I just let up on the gas. Then after following a ways I presume my speed picked up a little.

'Q. Then you were going about the same speed, about 30 miles an hour?

'A. Yes.

'Q. How far then did you stay behind the Cussen car up to the point of the accident?

'A. Four or five cars.

'Q. How far would that be?

'A. The average car is 16 feet.

'Q. And it was four car lengths?

'A. Four or five.

'Q. Could it have been three?

'A. No, I thought it sufficient enough distance for ordinary conditions.

'Q. This was not an ordinary condition?

'A. No, sir.

'Q. It was pretty slippery and you were four car lengths behind?

'A. Yes.'

It was reasonable to infer from the foregoing testimony that Davis in stating, 'I thought it sufficient enough distance for ordinary conditions', had reference to the conditions presented by the traffic and conditions of the road, and not to the extraordinary condition of the Cussen car being struck and stopped by the Stanfield car. This court cannot say as a matter of law that the record discloses evidence which points unerringly to the conclusion of negligence on the part of Davis. The trial court correctly refused to direct a verdict in appellant's favor on the issue of negligence.

Appellant asserts error in the refusal of the trial court to give his requested instructions to the jury dealing with the law concerning a single, or indivisible injury resulting from two separate, unrelated, but almost contemporaneous blows.

The facts disclose an impossibility of any determination as to whether the cause of death of Vera Weltz was from injuries received resulting from the impact from the Stanfield car, the Davis truck, or a combination of the two. It is likewise impossible to attribute any proportion of the injuries to either blow. Testimony of witnesses and the photographic exhibits disclose extensive damage to both the front and rear of the Cussen vehicle. The physician who examined Miss Weltz while she was still in the vehicle was unable to render an opinion as to which of the two collisions caused the fatal injuries.

Appellant sought to have the court instruct the jury on his theory of the case. He asserted it is the law that when it is impossible for anyone to determine whether a decedent dies as a result of injuries received from either one of the two blows, or from a combination of both, that because of such impossibility of determination as to the actual cause, the law requires a decedent be considered as having died as a result of both blows. His requested instructions specifically pointed out that it was for the jury to determine all the facts of the accident; also to determine whether any act or omission of Mr. Davis was a proximate cause or contributing efficient cause of his truck striking the Cussen car, and if so determined, whether such act or omission constituted negligence.

In evaluating appellant's assignment of error, consideration must be given to the fact that only one of the two alleged tort-feasors is before the Court; the cause was dismissed as to Mrs. Stanfield. Consideration must also be given to respondent Davis's admission contained in the pleadings that the decedent died from injuries received in the collision of the car, in which she was riding, with the other two vehicles. By appellant's contention, he is asserting a joint and several liability against respondent Davis, although he cannot prove that the girl was not already dead at the time of the second collision, or that there was a causal relation between the subsequent collision and her death.

A number of jurisdictions have been faced with a similar factual situation as is presented in this case, involving a multiple collision of vehicles, with a single or indivisible injury. The problem, that first plagued the courts in resolving the law in such cases was how one defendant could be held to be jointly and severally liable with another defendant when in fact their tort was not a 'joint' tort; there was no joint duty owed to a plaintiff, and no breach of any joint duty when two automobile drivers successively collided with the plaintiff's car. See Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33 (1961).

Generally the courts have resolved such problem on a practical basis, as was aptly stated in 38 Am.Jur. Negligence, § 257, p. 946.

'Moreover, there are recognized classes of cases in which several persons may be held jointly and severally liable, although they are several and not joint tort-feasors, where, notwithstanding lack of any concert of action or unity of purpose, their acts are concurrent as to place and time and unite in setting in operation a single destructive and dangerous force which produces the injury. One such class of cases, recognized by most authorities, embraces those cases...