Hoffman v. Barker, 8580

• Decision Date: 31 October 1957
• Docket Number: No. 8580,8580
• Citation: 317 P.2d 335,79 Idaho 339
• Parties: William Byron HOFFMAN, a minor, by and through his guardian ad litem, Orville Hoffman and Georgine Hoffman, husband and wife, State of Idaho, Walter C. Musgrave, State Insurance Manager, State of Idaho, Plaintiffs-Appellants, v. Roy BARKER and Lee Barker, husband and wife, Marion J. Hess, and/or Marion J. Hess Construction Company, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 335

317 P.2d 335

79 Idaho 339

William Byron HOFFMAN, a minor, by and through his guardian ad litem, Orville Hoffman and Georgine Hoffman, husband and wife, State of Idaho, Walter C. Musgrave, State Insurance Manager, State of Idaho, Plaintiffs-Appellants, v. Roy BARKER and Lee Barker, husband and wife, Marion J. Hess, and/or Marion J. Hess Construction Company, Defendants-Respondents.

No. 8580.

Supreme Court of Idaho.

Oct. 31, 1957.

T. Harold Lee, Rigby, for appellants.

Holden & Holden, Albaugh, Bloem, Barnard & Smith, Idaho Falls, for respondents.

PORTER, Justice.

Appellant, William Byron Hoffman, a minor, brought this action by his guardian ad litem to recover damages for personal injuries received when struck by an automobile driven by defendant, Lee Barker. By the amended complaint it is alleged that the injuries of such appellant were caused by the concurrent negligence of defendants. The appellants, State of Idaho, and Walter C. Musgrave, State Insurance Manager, State of Idaho, are subrogees under the Workmen's Compensation Law, I.C. § 72-101 et seq., claiming re-imbursement for funds paid under such law to appellant, William Byron Hoffman.

Defendants, Roy Barker and Lee Barker, husband and wife, filed a general demurrer to the amended complaint which demurrer the court overruled and such defendants were by the court required to answer. Defendant, Marion J. Hess, and/or Marion J. Hess Construction Company, filed a general demurrer to the amended complaint which demurrer was by the court sustained and a judgment of dismissal entered dismissing the action as to such defendant. From such judgment of dismissal, appellants have appealed to this court.

The pertinent facts alleged in the amended complaint which it is necessary to consider in determining the merits of this appeal are as in hereinafter set out. On or about May 27, 1955, defendant, Marion J. Hess, and/or Marion J. Hess Construction Company, contracted with the State of Idaho for the construction of a stretch of road between the Village of Teton and the City of St. Anthony in Fremont County, Idaho. On September 8, 1955, such defendant was engaged in the construction of said roadway pursuant to the terms of such contract; and had caused the entire route of such roadway to be torn up and had various sections of said roadway in various stages of construction. From the start of the construction project within the limits of the City of St. Anthony to a point approximately one mile south thereof, portions of such roadway appeared to be completed, but were in fact in various stages of completion with gravel and other materials piled and exposed upon the west side of such roadway. Said defendant continued to work upon such roadway during the evening of September 7th and early morning of September 8, 1955; and at various times throughout the night caused large dump trucks, hauling gravel and other materials, to be placed upon the westerly half of said roadway, while traveling in a northerly direction, for the purpose of dumping gravel and other materials upon the westerly portion of said roadway.

On the morning of September 8, 1955, appellant, William Byron Hoffman, was of the age of 17 years and was employed as a checker with the Department of Highways, State of Idaho, and while acting within the scope and course of his employment, was rightfully in and about the said roadway under construction at a point about one mile south of the north end of said roadway; and that at the said time and place he was engaged in checking the amount of crushed gravel being placed on such roadway by such defendant.

By the terms of the contract between said defendant and the State of Idaho, such roadway under construction was open to traffic during the construction thereof. On or about 2:15 a. m. of September 8, 1955, defendant, Lee Barker, was driving a certain Oldsmobile automobile in a southerly direction on said roadway at a point approximately one mile south of the north end of said roadway under construction. Defendants, Roy Barker and Lee Barker, are husband and wife and the owners of such automobile. At such time and place, appellant, William Byron Hoffman, was properly and lawfully to the north of and near the truck of defendant Construction Company then and there standing and parked on the westerly half of said roadway and headed in a northerly direction. The said automobile of defendants, Lee Barker and Roy Barker, ran into the said William Byron Hoffman with great force and violence and inflicted upon him serious and permanent injuries.

The appellants further alleged that the striking of the said William Byron Hoffman by the automobile of defendants, Lee Barker and Roy Barker, was proximately caused by the joint and concurrent negligence of the defendants, Lee Barker and Marion J. Hess, and/or Marion J. Hess Construction Company.

Paragraph XIV of the amended complaint sets out the alleged negligence of defendant, Marion J. Hess, and/or Marion J. Hess Construction Company, and reads as follows 'That at the time and place of the said striking of the said William Byron Hoffman by said automobile, as aforesaid, the acts and conduct of the defendant, Marion J. Hess, and, or, Marion J. Hess Construction Company, by and through his agents and employees, were negligent, heedless, reckless, careless, wanton and unlawful in the following particulars, to wit: Although duly informed of the premises and of the great danger thereby incurred by the traveling public, and more particularly the defendant, Lee Barker, having occasion to travel upon said roadway in the nighttime, in failing to place a watchman, guard, barrier, or warning light, signal or device, except at either end of the 5.267 miles of roadway under construction so as to warn persons, and more particularly the defendant, Lee Barker, lawfully traveling upon said roadway in motor vehicles of the fact that there were gravel and other materials piled upon the westerly portion of said roadway, and of the fact that construction of said roadway was in progress during the nighttime, and of the fact that within said construction zone the roadway was apparently completed and there was no construction in progress for a space of .3 of a mile immediately preceding the point where the said William Byron Hoffman was struck, but that at that point construction resumed; in unlawfully placing in and upon the usually traveled path of southbound traffic a dump truck while facing in a northerly direction; in placing said dump truck upon the westerly portion of said roadway while facing north in the nighttime, with its headlights on, and without placing a watchman, guard, barrier, or warning light, signal or device to warn the traveling public, and more particularly the defendant, Lee Barker, that the same was there dumping gravel; in spotting said truck in the wrong lane of traffic; in having said dump trucks directional signal lights flashing when said dump truck was not in fact making, or about to make, any turning movement, but was parked at the end of a gravel pile, preparatory to unloading gravel; that the defendant, Marion J. Hess, and, or, Marion J. Hess Construction Company, by and through his agents and employees acts and conduct in the construction of said roadway and the operation of his dump truck upon the said roadway at said time and place was careless, unlawful and heedless and in willful and wanton disregard of the rights and safety of others, including the defendant, Lee Barker, and more particularly the plaintiff, William Byron Hoffman, and without due caution and circumspection.'

Paragraph XV of the amended complaint sets out the alleged negligence of defendant, Lee Barker, and reads as follows:

'That at the time and place of the striking of the said William Byron Hoggman by said automobile, as aforesaid, the acts and conduct of the said defendant, Lee Barker, were negligent, heedless, reckless, careless, wanton and unlawful in the following particulars, to wit: In driving her motor vehicle upon the roadway while under the influence of intoxicating liquor; in operating her motor vehicle on said roadway while it was under construction at a rate of speed in excess of the maximum safe speed under the conditions prevailing; in operating her motor vehicle upon the roadway without keeping a proper, or any lookout for persons engaged in the construction of said roadway; in operating her motor vehicle upon the roadway carelessly, unlawfully and heedlessly, and in willful and wanton disregard of the rights and safety of others, including the defendant, Marion J. Hess, and, or, Marion J. Hess Construction Company, and more particularly the plaintiff, William Byron Hoffman, and without due caution and circumspection.'

A general demurrer admits the truth of all facts well pleaded in the complaint and of all the intendments and inferences that may reasonably be drawn therefrom; and such facts will be construed in the light most favorable to the plaintiff. Bekins Moving & Storage Co. v. Maryland Cas. Co., 72 Idaho 493, 244 P.2d 1100; Parsons v. Kootenai Rural Electrification Ass'n, 71 Idaho 510, 234 P.2d 828; Paulsen v. Krumsick, 68 Idaho 341, 195 P.2d 363; Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151.

It is a fair and reasonable inference from the facts pleaded in plaintiffs' amended complaint, and is in effect an allegation therein, that defendant, Lee Barker, after passing the piles of gravel on the west side of the roadway and upon reaching the stretch of roadway apparently completed, drove her car to and upon the west and proper side of the roadway; and that the apparent completion of the highway, the absence of proper or any signs or signals warning of danger, and the presence of the...