Hawkins v. Chandler

• Decision Date: 14 October 1964
• Docket Number: No. 9370,9370
• Citation: 396 P.2d 123,88 Idaho 20
• Parties: James HAWKINS, Plaintiff-Respondent, Cross-Appellant, v. Melvin CHANDLER, dba Chandler's Wrecking Service, Defendant-Respondent, and J. Lew Papes, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 123

396 P.2d 123

88 Idaho 20

James HAWKINS, Plaintiff-Respondent, Cross-Appellant, v. Melvin CHANDLER, dba Chandler's Wrecking Service, Defendant-Respondent and J. Lew Papes, Defendant-Appellant.

No. 9370.

Supreme Court of Idaho.

Oct. 14, 1964.

Rehearing Denied Nov. 10, 1964.

E. L. Miller, Coeur d'Alene, for appellant.

James W. Ingalls and Charles H. Kimball, Coeur d'Alene, for respondent, cross-appellant, Hawkins.

Brown, Peacock & Keane, Kellogg, for respondent, Chandler.

TAYLOR, Justice.

On the evening of November 24, 1961, plaintiff Hawkins (respondent and cross-appellant) was driving his automobile north on U.S. Highway 95, traveling from Potlatch toward Tensed. Snow had been plowed off the road so that both lanes were open. The surface was icy and slick. From the summit of what is known as Marsh Hill, the road descends toward the north. At the scene of the accident the grade averaged about 6%. After a slight turn to the left, for north-bound traffic, there were two rather sharp curves to the right; the roadbed sloped toward the inside of these curves; the road was constructed on a sloping hillside; on the right the hill rose up from the borrowpit and on the left it sloped downward from the shoulder of the road; on either side was a growth of pine trees. As he proceeded down the hill, plaintiff observed a car which had slid off the road to the right on rounding the first right-hand curve. In attempting to pass another vehicle farther to the north, plaintiff's car slid off the road just beyond the second right-hand curve. Plaintiff then walked back over the summit of the hill to a farmhouse and called the Chandler's Wrecking Service at Potlatch. This call was placed about 6:00 or 6:30 in the evening, and it was getting dark. On returning toward his car the plaintiff found that another car had slid off the road just ahead of the first car. This second car was driven by the witness Rouse, who, being equipped with chains, had undertaken to help the first car out of the ditch, and his car slid off the road in the process.

When the wrecker arrived it was positioned on the road opposite the Rouse car to pull that car back on the highway. While this operation was in progress, the lights of defendant's (appellant Papes) car were seen coming over the summit. On rounding the curve, Papes, being unable to stop his car, drove it into the back end of the wrecker, which was standing at an angle on the right-hand, or northbound lane of the highway. Plaintiff was caught between defendant's car and the wrecker as he attempted to move off the road between the back of the wrecker and the Rouse car. As a result plaintiff's right leg was severely injured.

Plaintiff charged defendant Papes with negligence in driving at an excessive speed in view of the conditions of the highway; in failing to keep a proper lookout; in failing to observe the wrecker and the lights thereon; in failing to maintain control of his car and to stop before reaching the wrecker; and in failing to pass the wrecker on the left.

Plaintiff charged defendant Chandler, operator of the wrecker, with negligence in failing to place warning flares or other signals, or to station a flagman, upon the highway to warn drivers of approaching vehicles of the position of the wrecker.

Defendant Papes by affirmative answer and cross claim charged defendant Chandler with negligence in the placing of the wrecker diagonally across his lane of travel and in failing to place flares or a flagman to warn approaching drivers, thus creating 'a trap or a snare' by reason of which defendant was unable to avoid the collision, and charged plaintiff Hawkins as the employer of Chandler, to whom Chandler's negligence was imputable. Defendant Papes charged the plaintiff with contributory negligence and alleged his assumption of risk in placing himself in a position of danger between the wrecker and the approaching Papes' vehicle.

The jury returned a verdict in favor of the plaintiff and against the defendant Papes, awarding damages; and also a verdict in favor of defendant Chandler and against the plaintiff, denying plaintiff damages against Chandler; and in favor of Chandler and against defendant Papes on the latter's cross claim.

From the judgments entered against him on these verdicts defendant Papes appealed, and plaintiff Hawkins appealed from the judgment entered against him in favor of defendant Chandler.

The evidence on the issues of negligence, contributory negligence and assumption of risk was conflicting. No issue is presented on this appeal as to sufficiency of evidence.

Appellant Papes assigns as error the ruling of the court permitting the witness Frost, a highway patrolman of ten years experience, to testify to the effect that the law did not require the use of flares by the driver of a wrecker, unless the wrecker was disabled. The testimony was admitted over objection that it called for the opinion of the witness on a question of law. A lay witness is never permitted to give his opinion on a question of law. 20 Am.Jur., Evidence, § 799; 32 C.J.S. Evidence § 453. The testimony was not admissible. However, under circumstances disclosed by the record, its admission was not reversible error. On direct examination by plaintiff's counsel, the witness was questioned concerning a conversation he had had with Chandler a few days after the collision, as follows:

'Q Did he make any statement with reference to the necessity for use of flares on that particular occasion?

'A Well, he indicated that he normally would use those, take those necessary precautions.

'Q Did he state why he had not on this evening in question?

'A At that time he indicated he didn't really know why he didn't take any necessary precautions. I don't recall of any other reason being indicated.'

By this examination the witness was led to suggest to the jury that the use of flares was a necessary legal requirement. The cross-examination tended to offset that impression. Moreover, the court, having in mind the cross-examination, permitted the officer to testify that it was the custom of operators of wreckers in the area to use flares or flagmen, under such circumstances.

Appellant Papes assigns as error the admission in evidence of defendant Chandler's exhibit D. This was a map or scale drawing of a section of the highway, prepared by an engineer employed by defendant Chandler. The section of highway represented was based upon the location of the point of collision as pointed out to the engineer by Chandler. The exhibit purports to portray the point of impact and 600 to 700 feet of the roadway and curve upgrade to the south. It also purports to show the dip of the roadbed toward the inside of the curve at the point of collision; the degree of the curve; the average slope of the grade; the distance from the point of impact to the farthest point upgrade on the inside edge of the road at 4 1/2 feet elevation from the roadbed, that the surveyor's stadia rod could be seen through the engineer's transit, set at the inside edge of the road; and a like maximum distance along the center line of the highway. Papes' objections to the exhibit were, first, that the starting point from which the survey was made was not located with sufficient definiteness to entitle the exhibit to be admitted, and, second, that the conditions existing at the scene at the time of the survey were not the same as at the time of the accident. Mr. Chandler was extensively examined and cross-examined with reference to the point of impact, which he pointed out to the engineer, and was positive that he had accurately indicated that point. The engineer was extensively cross-examined as to the conditions existing at the time he made the survey from which the exhibit was prepared. He testified that the survey was made between 11:00 a. m. and 3:00 p. m. on the 4th day of May, 1963; that the road was bare; that it was a clear day, although cloudy; that the transit afforded magnification and better vision at a distance than would be available to the naked eye; that a moving driver would not have as clear or accurate a view as he had through the transit; and that the accuracy of the exhibit as to physical features and distances shown would depend on the accuracy of Chandler in locating the point of impact.

From the testimony of these witnesses, the jurors were made aware of the probability and nature of such inaccuracies as might be contained in the exhibit. They were thus enabled to appraise it, and limit its application to the value it did have in helping them understand in general the scene and surroundings of the collision. The sight distances represented only those distances on a straight line between the transit and the stadia rod at which the hillside or vegetation adjacent to the inside of the curve would cut off the vision of an observer from either point to the other. The engineer's explanation that a driver would not be able to make observations as accurate as afforded by the use of the transit, would prevent the jury being misled by these distances. The admission of the exhibit was not error.

Papes also objected to the remark made by the court at the time Chandler's exhibit D was admitted, to wit: 'At least we have some distances here.' The remark expressed to the jury an awareness of possible weaknesses in the exhibit. In view of this and the engineer's cross-examination we do not think defendant Papes was prejudiced. McShane v. Quillin, 47 Idaho 542, 552, 277 P. 554 (1929); McKissick v. Oregon Short Line Ry. Co., 13 Idaho 195, 89 P. 629 (1907).

On cross-examination of Papes the court overruled his objection to the question as to whether he was driving at such speed and in such manner, that, on seeing the obstruction, he could stop his car before colliding with it. Papes complains that the question assumes it was his absolute duty to so drive under all conditions. The applicable rule was stated in Stanger...