Hooker v. Schuler

• Decision Date: 31 October 1927
• Docket Number: 4680
• Citation: 260 P. 1027,45 Idaho 83
• Parties: MINNIE HOOKER, Respondent, v. ALOYS SCHULER, Appellant
• Court: Idaho Supreme Court

260 P. 1027

45 Idaho 83

MINNIE HOOKER, Respondent, v. ALOYS SCHULER, Appellant

No. 4680

Supreme Court of Idaho

October 31, 1927

HIGHWAYS-NEGLIGENCE-DOCTRINE OF "LAST CLEAR CHANCE"-REFUSAL TO GIVE REQUESTED INSTRUCTION-PROXIMATE CAUSE OF ACCIDENT-QUESTION FOR JURY-VIOLATION OF STATUTE-NO BAR TO RECOVERY WHEN-RULE ON CONFLICTING EVIDENCE.

1. Evidence, in action for collision of automobile with pedestrian walking alongside of highway, held to support verdict for plaintiff on ground of negligence or last clear chance.

2. Instruction that, if plaintiff pedestrian was on right side of road when struck by automobile, such fact would constitute contributory negligence, and prevent recovery as matter of law, held properly refused.

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

4. Where there was evidence that plaintiff pedestrian was off the pavement on the graveled portion on the highway, and that the automobile which struck her, though about to meet another car, had ample room to pass her without driving off the paving, held it was proper to submit to the jury the question of whether her walking on the wrong side of the road, or the negligent manner in which defendant handled his car, or the existence of defective brakes thereon, was the proximate cause of the accident.

5. One's violation of statute from which injury to him arises does not bar recovery when it appears that the injury received by him was the result of the negligence of another which was the proximate cause, or one of the proximate causes, of the injury, and not merely a condition.

6. Where there is substantial evidence to support the verdict it will not be disturbed, though there is a conflict in the evidence.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Action for damages. Judgment for respondent. Affirmed.

Judgment of the trial court affirmed, with costs to respondent.

Bruce R. Kester and Ed. R. Coulter, for Appellant.

Plaintiff must recover, if at all, upon the negligence proved. (20 R C. L., pp. 176, 177, sec. 142; Hall v. Northern Pacific R. Co., 16 N.D. 60, 14 Ann. Cas. 960, 111 N.W. 609; Manuel v. Chicago R. I. & P. R. Co., 56 Iowa 655, 10 N.W. 237.)

Where the record shows that plaintiff was violating the law of the road, and that such violation was the proximate cause of her injury, she is not entitled to recover. (Cupples Mercantile Co. v. Bow, 32 Idaho 774, 24 A. L. R. 1296 189 P. 48; Lloyd v. Calhoun, 82 Wash. 35, 143 P. 458; Johnson v. Heitman, 88 Wash. 595, 153 P. 331.)

Where the plaintiff is herself guilty of negligence, and her negligence continues up to and becomes a factor and contributory cause of her injury, she is not entitled to the doctrine of the last clear chance. (Huddy on Automobiles, sec. 485; Smith v. City of Rexburg, 24 Idaho 176, 132 P. 1153; Emmons v. Southern Pacific Co., 97 Ore. 263, 191 P. 333.)

In an action for personal injuries, if the person injured has by want of ordinary care so far contributed to the injury to the extent that but for the want of ordinary care the injury would not have happened, then such want of ordinary care amounts to contributory negligence and the plaintiff cannot recover. (20 R. C. L., pp. 101, 145, 146; Rumple v. Oregon Short Line R. Co., 4 Idaho 13, 35 P. 700, 22 L. R. A. 735; Carpenter v. McKissick, 37 Idaho 729, 217 P. 1025.)

Norris & Sutton and George Donart, for Respondent.

A verdict supported by substantial evidence will not be disturbed because of conflict in the evidence. (Raft River Land & Livestock Co. v. Laird, 30 Idaho 804, 168 P. 1074; Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Fleming v. Benson, 32 Idaho 103, 178 P. 482; Cupples Mercantile Co. v. Bow, 32 Idaho 774, 24 A. L. R. 1296, 189 P. 48; Lyons v. Lambrix, 33 Idaho 99, 190 P. 356; Bafus v. Peeper, 33 Idaho 324, 194 P. 96; Haydon v. Branson, 33 Idaho 368, 195 P. 545.)

The burden of proving contributory negligence is with the defendant. (Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Osier v. Consumers Co., 42 Idaho 789, 248 P. 438; Muir v. City of Pocatello, 36 Idaho 532, 212 P. 345.)

Negligence on the part of a person injured which was not the proximate cause of his injury will not be a bar to a recovery. (Pilmer v. Boise Traction Co., supra; 20 R. C. L., Negligence, secs. 113, 114.)

The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by a new cause, produces the injury, and without which the injury would not have occurred. (Pilmer v. Boise Traction Co., supra; Antler v. Cox, 27 Idaho 517, 149 P. 731.)

The question of what is the proximate cause of an injury is a question for the jury. (Pilmer v. Boise Traction Co., supra; Milwaukee-St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; City of Longmont v. Swearingen (Colo.), 254 P. 1000.)

A person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligence of the injured party, is considered in law solely responsible for the injury. (Pilmer v. Boise Traction Co., supra; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Mosso v. Stanton, 75 Wash. 220, 134 P. 941, L. R. A. 1916A, 943; 20 R. C. L., Negligence, sec. 114.)

Although the action of the one injured may have been the primary cause of the injury, yet an action for such injuries may be maintained if it be shown that the defendant might, by the exercise of reasonable care and diligence, have avoided the consequences of the injured party's negligence. (Pilmer v. Boise Traction Co., supra; Anderson v. Great Northern Ry. Co., supra.)

A person will not be precluded from recovery on the ground of contributory negligence unless it was such that upon consideration of all the facts and circumstances as they appeared at the time a reasonably prudent person would not have acted as did the injured party; and only when it appears from the undisputed facts that a reasonably prudent person would have acted differently does it become a question of law. (Osier v. Consumers Co., supra; Dawson v. San Diego Electric Ry. Co. (Cal. App.), 255 P. 215; Wheeler v. Oregon R. R. Co., 16 Idaho 375, 102 P. 347; Muir v. City of Pocatello, supra.)

The doctrine of "last clear chance" applies in cases where the plaintiff's own act may have placed him in a position of peril if the defendant negligently acts or negligently omits to act with knowledge of the plaintiff's peril and an injury results. (20 R. C. L., secs. 113-117; Mosso v. Stanton, supra; British Columbia Electric Ry. Co. v. Loach, Ann. Cas. 1916D, 497, and note, p. 501.)

Evidence of a violation of last clear chance rule is admissible under pleadings charging negligence and need not be specifically pleaded. (Mosso v. Stanton, supra; Crowley v. Burlington, C. R. & N. R., 65 Iowa 658, 20 N.W. 467, 22 N.W. 918.)

FEATHERSTONE, Commissioner. Babcock and Adair, CC., concur.

OPINION

FEATHERSTONE, Commissioner.--

Minnie Hooker, respondent, sued to recover $ 2,000 damages for personal injuries received on January 27, 1924, when she was struck by an automobile driven by Aloys Schuler.

A jury trial resulted in a verdict and judgment for respondent and the jury fixed her damages at $ 1,000, and defendant has appealed.

There is little dispute as to the facts. The record shows that on January 27, 1924, on a rainy evening, respondent was walking along a public highway leading from Ontario, Oregon, to the bridge across Snake River, on what is known as the Ontario-Payette Highway, one of the public highways of Oregon. The road was surfaced with cement the paved portion being sixteen feet wide, with a graveled strip on each side of the pavement about four feet wide. Respondent was accompanied by three friends; they were traveling easterly on the south or right-hand side of the road. Respondent desired to catch a ride to her home in Idaho and, fearing that a large party would lessen her chances, her friends ran ahead and stepped off on a side road where they would not be seen when they noticed appellant's car coming from the west. Respondent stayed on the right-hand side of the road to attract the attention of appellant as he came toward her.

There is a conflict in the evidence as to respondent's position as to the pavement at the time of the accident, some of the witnesses claiming she was on the edge of the pavement, she, and others, claiming she was on the graveled portion from two to four feet from the edge of the pavement.

The right-hand lamp and fender of appellant's car struck respondent, knocking her down and dragging her from twenty to sixty-five feet and causing severe internal and external injuries, breaking her pelvis and severely injuring her knee.

Appellant urges in his brief that the evidence is not sufficient to support the verdict, and that the court erred in refusing to give certain requested instructions of the defendant, also that instructions four, five, six and nine, given by the court, were erroneous.

We cannot agree with appellant that the verdict and judgment are not supported by the evidence, the record showing that the preponderance of the evidence is that when the respondent was struck she was walking along the highway on the right-hand side thereof, on the gravel and off the edge of the pavement as far as she could go without stepping into the ditch on the roadside, and that even though appellant was about to meet another automobile, he had ample room to pass to the right of that car and still remain on the pavement, which was sixteen feet wide, and appel...