Hamilton v. Carpenter

• Decision Date: 24 July 1930
• Docket Number: 5442
• Citation: 290 P. 724,49 Idaho 629
• Parties: R. E. HAMILTON, Respondent, v. L. N. B. CARPENTER, Appellant
• Court: Idaho Supreme Court

290 P. 724

49 Idaho 629

R. E. HAMILTON, Respondent, v. L. N. B. CARPENTER, Appellant

No. 5442

Supreme Court of Idaho

July 24, 1930

AUTOMOBILES-ACTION FOR DAMAGES-COLLISION-ATTEMPT TO AVOID-CONTRIBUTORY NEGLIGENCE-PLEADING-AMENDMENTS.

1. Permitting amendment of complaint after trial began, to correct motor and serial numbers of plaintiff's automobile, which collided with defendant's car, held not error.

2. Whether driver of automobile, approaching at speed exceeding fifteen miles per hour intersection obstructed to view where collision with another automobile occurred, was contributorily negligent, held for jury under evidence (Laws 1927, chap. 260, sec. 4, subd. 3).

3. Instruction that, if automobile colliding with another car was driven on left of highway, driver's negligence barred recovery unless he believed as reasonably prudent person necessity therefor, held proper under evidence (Laws 1927 chap. 260, secs. 9, 11).

4. Whether driver of automobile, proceeding on left of highway to avoid collision with another car, is negligent, depends on whether he acted in reasonably prudent manner (Laws 1927 chap. 260, secs. 9, 11).

5. Refusing instructions covered by instructions given held not error.

6. Evidence sustained verdict for plaintiff whose automobile was overturned when it collided with defendant's car at intersection.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action to recover damages to automobile, resulting from collision. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

Charles E. Winstead and Frawley & Barnes, for Appellant.

The respondent cannot sue to recover for loss of an automobile of a particular description and at the trial substitute a separate and distinct automobile as the same would constitute a failure of proof. (C. S., sec. 6724; 22 Ency. Pl. & Pr., p 542; 29 A. L. R. 638, note, cases cited.)

The word "amendment" necessarily implies something upon which the correction, alteration improvement or reformation can operate, something to be reformed, corrected, rectified, altered or improved. (McCleary v. Babcock, 169 Ind. 228, 82 N.E. 453; Gagnon v. United States, 193 U.S. 451-457, 24 S.Ct. 510, 48 L.Ed. 745; Givens v. Wheeler, 6 Colo. 149; 2 C. J., p. 1317, cases cited.)

The evidence is undisputed that the driver of respondent's automobile did not hold his position on the right side of the road but turned to his left and in doing so crashed into appellant's automobile. By turning to the left he violated the law and cannot recover. (Cupples Merc. Co. v. Bow, 32 Idaho 774, 24 A. L. R. 1296, 189 P. 48.)

Though contributory negligence is generally a question of fact, it becomes a matter of law for court's determination when established facts and circumstances permit only one possible conclusion to be drawn by a reasonably prudent man. (Dale v. Jaeger, 44 Idaho 576, 258 P. 1081.)

P. E. Cavaney, for Respondent.

The question of the advisability of amendment to pleading is a question of fact for the court and will be reversed only when the court grossly abuses its discretion, and the presumption is always against the presumption that the court abused its discretion. (31 Cyc., pp. 368, 369, Appeal and Error, 3 Cyc., pp. 327, 328.)

Some courts with statutes not as broad as section 6726, as amended by Sess. L., 1921, chap. 235, sec. 1, pp. 526, have gone so far as to permit amendments after the commencement of the trial to the extent of introducing a new cause of action where the adverse party could not show that he sustained any injury thereby. (31 Cyc., pp. 398, 411; Powers v. Security S. & T. Co., 38 Idaho 289, at 296, 222 P. 779.)

Hamilton was driving on the right side of the road until he saw defendant's car crosswise of the right side of the road and when this emergency arose there was only one thing for him to do in order to avoid a collision and that was to turn his auto to the left. He was only chargeable in so doing with the exercise of reasonable care for the safety of others using the highway, and the question of whether he used such care was a question for the jury. (Richards v. Rifenbery, 108 Okla. 56, 233 P. 692; Elliott on Roads and Streets, 3d ed., sec. 1081; Howell v. Burchville Twp., 211 Mich. 418, 179 N.W. 279; Quinn v. O'Keeffe, 9 A.D. 68, 41 N.Y.S. 116.)

The appellant cannot complain because Hamilton turned his car to the left, because it was the appellant's own negligence which forced Hamilton to turn to the left in order to avoid a collision. (Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222; Bragdon v. Kellogg, 118 Me. 42, 6 A. L. R. 669, 105 A. 433; Noyes v. Schoichiro Katsuno, 111 Wash. 529, 191 P. 419; Skene v. Graham, 114 Me. 229, 95 A. 950; 1 Berry on Autos, 6th ed., pp. 242, 243.)

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This is an action brought by plaintiff, respondent here, to recover for damages to his automobile resulting from a collision with the car of defendant. This occurred on the Meridian-Nampa Highway, three miles west of Boise, at or near an intersecting road which crosses it. The action is for alleged negligence. The defense is a denial of negligence on the part of appellant and a claim that respondent was guilty of contributory negligence which precludes recovery.

At the time of the collision respondent's car was proceeding east toward Boise, and appellant's car had just come upon the main arterial highway off a stop or arterial road from the south. Appellant's course was west after entering the main highway. The collision occurred at 8:15, or thereabouts on the twenty-sixth day of October, 1928.

Respondent's testimony tended to establish that there was no visible disclosure of appellant's car, and the driver of respondent's car had no view or warning of it until it came into the glow of his headlights, in respondent's path or part of the road, about fifty feet ahead; that it was moving slowly when first seen, then suddenly lurched forward; that the driver of respondent's car, upon sighting appellant's car, immediately applied his brakes and turned to the left in an attempt to get by without colliding. The driver of respondent's car testified positively that it was dark and the headlights of appellant's car were out. Several others who saw the accident so testified. The claim that it was a dark night and that the headlights on appellant's car were out is contradicted by appellant, his wife, and other witnesses.

The collision threw appellant's car, a Master Six Buick, around and left it headed in a northeasterly direction. It completely overturned respondent's car.

The jury returned a verdict for plaintiff in the sum of $ 500. Defendant appealed.

Appellant charges error by several assignments, but in his brief mainly urges three points:

First. It is claimed the court erred in permitting an amendment of the complaint after the trial had begun.

Second. That as a matter of law the respondent was guilty of contributory negligence in approaching the crossing or intersection in question at a rate of speed greater than fifteen miles per hour, the view of the road approaching being obstructed.

Third. That as a matter of law respondent was guilty of contributory negligence in turning to the left across the center line of the road in an effort to pass appellant's approaching car.

From the evidence it appears that there was no dispute as to either the identity or ownership of the Whippet car which was turned bottom side up and damaged by the collision. In an effort to minutely describe the car in the complaint, respondent's attorney had received and used the wrong motor and car numbers. He had by mistake been given the car and engine numbers of a Whippet which respondent a very short time before the collision had traded in on the car wrecked. When this fact developed at the trial the court permitted an amendment of the complaint, correcting merely these erroneous figures. We think this point purely technical and without merit.

Regarding the second point, this court has recently held it is not negligence per se to approach an intersecting road, the driver's view of which is obstructed, at a rate of speed greater than fifteen miles per hour; that to do so is made prima facie unlawful by chap. 260, subd. 3, sec. 4, Laws of 1927, and is prima facie negligent; not more and not less than that. (Brixey v. Craig, ante, p. 319, 288 P. 152.) Under the evidence we think this issue of contributory negligence was for the jury. The jury was properly instructed as to the law regarding it.

The evidence is without dispute that just before the collision respondent's car was turned or swerved to its left with the purpose of passing appellant. The evidence is clear that the collision occurred north of the center line of the roadway. This was to respondent's left. It is claimed that this establishes negligence per se on respondent's part, which precludes recovery beyond any consideration of the acts of appellant. Appellant relies upon Cupples Merc. Co. v. Bow, 32...