Howes v. Fultz, 17273
| Decision Date | 10 February 1989 |
| Docket Number | No. 17273,17273 |
| Parties | Anne T. HOWES, Plaintiff-respondent, v. Dennis Lee FULTZ and Jack Johnson, Defendants-appellants, and Wilma Goldie Hulit, Defendant. |
| Court | Idaho Supreme Court |
Benoit, Alexander, Sinclair, Harwood & High, Ketchum, for appellants. Robert M. Harwood argued.
Smith, Beeks & Goss, Twin Falls, for respondent. Paul M. Beeks argued.
Plaintiff Howes sued defendants Fultz, Johnson and Hulit for damages arising from a broken hip suffered in an automobile accident. On the court's special verdict form the jury apportioned 75% of the negligence to Hulit, 20% to Fultz and Johnson, and 5% to plaintiff Howes. The jury determined plaintiff's damages to be $118,000. In response to various post trial motions, the trial court granted a j.n.o.v. removing the 5% negligence allocated by the jury to Howes and granted an additur of $14,000 for permanent disfigurement. Appellants appeal from the trial court's memorandum decision and order and the amended judgment. We affirm in part, reverse in part, and remand.
This damage action arose from an automobile accident which occurred approximately one-half hour after sunset on August 27, 1985, near Shoshone, Idaho. Plaintiff respondent Howes was a passenger in the right front seat of an eastbound car driven by defendant Hulit, which collided with the rear of an eastbound tractor/hay baler combination. The tractor/baler was being operated by defendant Fultz, an employee of the owner, Johnson. The farm implements were being moved down the highway between farm operations.
The tractor was illuminated by four white lights pointing forward. To the rear and aimed at the bailer, the tractor had two white floodlights, similar in intensity to low beam car headlights. They were located on top of the cab, about nine feet from the ground. Immediately forward of these two white lights were two orange flashing lights which the evidence indicated may have been obscured due to the intensity of the white lights. Below the white lights, approximately six feet off the ground, were two red taillights--one on each side of the tractor. Between these lights a "slow moving vehicle" reflective triangle was located.
The baler was equipped on the rear with two 4-inch red lights (one on each side), a "slow moving vehicle" triangle, and a 4-inch white working light. The white working light was obscured by the baler frame At the time of the accident the tractor/baler was traveling at 18 m.p.h. The Hulit vehicle was traveling between 45 and 50 m.p.h. The highway was level, wide and dry, and testimony was given that visibility was in the range of two miles.
[115 Idaho 683] and would not have been visible from the rear, but both the tractor driver and the tractor owner testified that the two red lights were working shortly before the baler got onto the highway. There were no flashing red lights or pilot vehicles following the baler.
Mrs. Hulit took no evasive action of any kind prior to impact. There were no skid marks at the scene. None of the occupants in the car, including a back seat passenger, William Corbett, recalled any conversations, warnings or exclamations by anyone about potential danger in the roadway prior to impact. Nevertheless, Corbett saw two white lights in the distance shortly before impact, but was looking out the side window at the time of the accident. Plaintiff Howes, too, admitted seeing something with two white lights in the roadway before the accident. She said, "It looked like a, oh, van or something with the lights up above, a van or some kind of a--some kind of a piece of machinery or something...."
The driver's license of Mrs. Hulit was restricted to daylight driving. She died of cancer before trial and before she could be deposed. Howes testified that she and Mrs. Hulit were good friends and that she had ridden with Mrs. Hulit at nighttime prior to the date of the accident. She denied prior knowledge of the restricted license, but appellant asserts that certain of Howes' responses to questions suggest that she indeed knew of Hulit's visual impairments and her restricted driver's license.
Fultz and Johnson called an accident reconstructionist, David Lord, who testified that the white rear tractor lights and the red baler lights were visible for 1.3 miles and 0.35 miles, respectively, before the point of impact. Accordingly, assuming a closing speed of 25 m.p.h., he testified that 158 seconds would have elapsed from the first opportunity to see the white lights until impact, and 50 seconds would have elapsed between first sight of the red lights and impact. Lord estimated that the accident was still avoidable up to 59 feet before impact, assuming a reaction time of 2.5 seconds.
At the close of trial the jury returned a special verdict allocating 75% of the negligence to Hulit, 20% to Fultz and Johnson, and 5% to Howes. The jury fixed Howes' damages at $118,000, 1 which was later reduced to $112,000 by application of the 5% comparative negligence attributed to Howes by the jury.
In response to various post trial motions, the trial court granted a j.n.o.v. removing the 5% negligence allocated to Howes and granted a damages additur of $14,000 for permanent disfigurement. In granting the additur the trial court did not offer defendants the alternative of a new trial.
Fultz and Johnson now appeal from the memorandum decision and order on post trial motions dated December 2, 1987, and the amended judgment dated December 8, 1987. We affirm in part, reverse in part, and remand the case to the district court.
We hold that the trial court erred in granting the j.n.o.v. on the issue of Howes' At trial three different theories were advanced regarding Howes' negligence: (1) she knew that her long time friend (Hulit) had poor vision and that it was getting dark as they left Gooding to return to their home in Hailey; (2) she knew of Hulit's restricted driver's license, yet rode in the car knowing that Hulit would be driving after dark; and (3) while thus riding as a passenger she saw the lights of what she thought was either a van or a piece of machinery in the road, but did not warn Hulit of the impending danger.
[115 Idaho 684] 5% negligence. In determining whether a j.n.o.v. should have been granted, this Court applies the same standard as does the trial court which passed on the motion originally. Whether a verdict should be directed is purely a question of law and on those questions the parties are entitled to full review by this Court without special deference to the views of the trial court. Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986). Hence, this Court must review the record of the trial below and draw all inferences from the evidence in a light most favorable to the non-moving party to determine if there was substantial evidence to justify submitting the case to the jury. Based upon our review of the record on this standard, we conclude that there was substantial competent evidence to justify submitting the case to the jury. Quick v. Crane, supra.
These theories were supported by some evidence at trial, most of it originating from the plaintiff herself. First, when asked if she noticed anything in the roadway ahead before the impact with the hay baler, plaintiff replied that she saw something that "looked like a, oh, van or something with the lights up above, a van or some kind of a--some kind of a piece of machinery or something...." A little later plaintiff testified:
....
Finally, when questioned regarding her knowledge of Hulit's restricted driving license, plaintiff Howes testified as follows:
To continue reading
Request your trial
-
Sanchez v. Galey
...the jury's award is sufficient to suggest that the jury's evaluation of damages was the result of passion or prejudice." Howes v. Fultz, 769 P.2d 558, 563 (Idaho 1989) (emphasis supplied). This was a misstatement of the law which until it is corrected will misguide the trial courts and the ......
-
McCandless v. Pease
...be granted as an alternative to the granting of a new trial" under Idaho Rule of Civil Procedure 59(a)(1)(F). Howes v. Fultz , 115 Idaho 681, 686, 769 P.2d 558, 563 (1989). "[T]he amount by which the trial judge offers to [increase] the damage award is a discretionary decision that is inexo......