Hubble v. Record

• Decision Date: 29 October 1958
• Docket Number: No. 8677,8677
• Citation: 80 Idaho 403,331 P.2d 270
• Parties: Alfred J. HUBBLE, Plaintiff-Respondent, v. Lloyd RECORD, Defendant-Appellant, Smith Frozen Foods of Idaho, Inc., Defendant.
• Court: Idaho Supreme Court

Page 270

331 P.2d 270

80 Idaho 403

Alfred J. HUBBLE, Plaintiff-Respondent, v. Lloyd RECORD, Defendant-Appellant, Smith Frozen Foods of Idaho, Inc., Defendant.

No. 8677.

Supreme Court of Idaho.

Oct. 29, 1958.

Daniel A. Quinlan, Jerry V. Smith, Lewiston, for appellant.

Paul C. Keeton, Lewiston, for respondent.

Cox, Ware & Stellmon, Lewiston, for defendants Smith Frozen Foods of Idaho, Inc.

PORTER, Justice.

This action was commenced to recover damages for personal injuries received by respondent in an accident occurring while he was engaged in helping to harvest green peas. At the close of the evidence at the trial, a motion for a directed verdict made by defendant, Smith Frozen Foods of Idaho, Inc., was by the court sustained and the action in effect dismissed as to such defendant. The jury rendered a verdict in favor of respondent and against appellant, Lloyd Record, in the sum of $42,833. Judgment was entered in accordance with the verdict.

Appellant, Lloyd Record, made a motion for new trial upon the ground, among other grounds, that the verdict was so excessive as to show passion and prejudice on the part of the jury. The trial court reduced the amount of the judgment by $10,000 to the sum of $32,833 and denied the motion for new trial. Appellant has appealed from the judgment and from the order denying the motion for new trial. No appeal has been taken by respondent from the dismissal of the defendant, Smith Frozen Foods of Idaho, Inc., nor from the order of the trial court reducing the judgment by $10,000.

Much of the factual background of this case has once before been presented to this court in an action wherein different parties were involved. See Hubble v. Perrault, 78 Idaho 448, 304 P.2d 1092.

In the year 1955, defendant, Smith Frozen Foods of Idaho, Inc., leased a parcel of farm land located near Lewiston from one Ellis Gibbs and raised thereon a crop of green peas. In connection with the harvesting of such crop, appellant contracted to haul the pea vines in his trucks from the field to the threshing machines called viners. One Alex Perrault contracted to furnish the laborers to pitch the pea vines into the viners. On July 18, 1955, Alex Perrault hired respondent in Spokane, Washington, to work as a pea pitcher. On July 19, respondent was taken to the leased land of Smith Frozen Foods of Idaho, Inc., on the Ellis Gibbs farms and assigned as a pea pitcher at a viner.

Appellant had several trucks engaged in hauling vines from the fields to the viners, some of which trucks were fitted with power driven mechanical sweeps to push the pea vines out of the trucks. The sweep was made of iron lattice work and was about three feet high and as wide as the truck bed. The sweep set on two runners and had cables running on each side back to a drum on the rear of the truck which was driven by a power takeoff operated from the cab of the truck. There was a chalk mark on the inside of the body of the truck a few inches form the rear which could be seen from the cab and the driver of the truck was supposed to stop the sweep by disengaging the power when the sweep reached the chalk mark. There were no other means employed to stop the sweep and prevent its going out of the back of the truck. This device was homemade and was installed in the trucks by appellant for the first time in the year 1955.

After respondent had been at work about two hours, a truck of appellant, equipped with a sweep, unloaded its pea vines at the viner where respondent was employed. The truck then pulled away from the pea vines for a distance of several feet. Respondent took up a position between the pea vines and the truck with his back to the truck and commenced pitching the pea vines into the viner. He was four or five feet from the back of the truck. The truck started up and the sweep came off the back end of the truck with a 'terrific whack' and struck respondent, inflicting severe and permanent injuries upon him.

By his assignments of error, appellant makes three contentions; first, that the evidence does not show any negligence on the part of appellant; second, that the evidence shows contributory negligence as a matter of law on the part of respondent; and, third, that the verdict is so excessive as to show passion and prejudice on the part of the jury.

Appellant has not made any argument either in his brief or orally to sustain his contention that the evidence does not show any negligence on his part. Likewise, respondent, following appellant's brief, does not discuss such issue. Accordingly, we dispose of such issue by saying that the evidence is ample and substantial in support of the jury's finding of negligence on the part of appellant.

In support of his second contention that this court should pass upon the question of contributory negligence as a matter of law in this case, appellant cites Bell v. Carlson, 75 Idaho 193, 270 P.2d 420; Larsen v. Jerome Cooperative Creamery, 76 Idaho 439, 283 P.2d 1096; and Rosevear v. Rees, 77 Idaho 270, 291 P.2d 856. These cases recognize that contributory negligence is generally a fact for the jury but hold that where there is no other reasonable interpretation of the evidence except that plaintiff was guilty of negligence which proximately caused or contributed to his injury, then the question of contributory negligence becomes one of law for the court.

The question of contributory negligence is for the jury or the court as a trier of the facts and never one of law where the evidence is such that the minds of reasonable men might differ or where different conclusions might be reasonably reached by different minds on such question. Ford v. Connell, 69 Idaho 183, 204 P.2d 1019. This rule has been repeatedly and consistently adhered to in our decisions. See Wilde v. Hansen, 70 Idaho 8, 211 P.2d 153; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651; Elliott v. Lee, 71 Idaho 242, 229 P.2d 1000; Stowers v. Union Pacific R. Co., 72 Idaho 87, 237 P.2d 1041; Jackman v. Hamersley, 72 Idaho 301, 240 P.2d 829; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971; Benson v. Brady, 73 Idaho 553, 255 P.2d 710.

Contributory negligence is a matter of defense and the burden is upon defendant to prove same unless such negligence appears from the complaint or from the evidence of plaintiff. Section 5-816, I.C.; Hooton v. City of Burley, supra.

Appellant contends that respondent, by taking up a position immediately behind the truck and with his back thereto and commencing to pitch the pea vines into the viner, negligently placed himself in a position of danger and did not exercise ordinary care to protect himself from such danger; and that his acts as a matter of law constituted contributory negligence.

In Splinter v. City of Nampa, 70 Idaho 287, at page 295, 215 P.2d 999, at page 1004, 17 A.L.R.2d 665, this court approved the following statement:

"As it generally is expressed, a plaintiff will not be held to have been guilty of contributory negligence if it appears that he had no knowledge or means of knowledge of the danger, and conversely, he will be deemed to have been guilty if it is shown that he knew or reasonably should have known of the peril and might have avoided it by the exercise of ordinary care."

In Hooton v. City of Burley, 70 Idaho 369, at page 375, 219 P.2d 651, at page 654, this court said:

'It is a general rule of law that when one knows of a danger brought about by the negligence of another, and understands and appreciates the risk therefrom and voluntarily exposes himself to such danger, he is precluded from recovering for resulting injuries.

* * *

* * * 'However, an injured person's knowledge of the physical characteristics of the offending instrumentality or condition does not of itself constitute contributory negligence. It is the appreciation of, or the opportunity to appreciate the peril in an instrumentality or condition, rather than the knowledge of the physical characteristics that bars a plaintiff from recovery for negligence.'

See also, Benson v. Brady, supra.

The evidence in this case shows that respondent had only been at work for about two hours. It does not disclose that he was familiar with or had ever examined a truck equipped with a sweep installation, or had knowledge of any danger in standing behind such a truck. The question of contributory negligence in this case was one of fact for the jury and is not a question to be decided as a matter of law by this court.

The third contention of appellant is that the verdict of the jury was so excessive and so disproportionate to the damages sustained by respondent as revealed by the evidence as to show that the entire verdict was tainted by passion and prejudice on the part of the jury, and that a new trial should be granted. The evidence shows that at the time of the accident respondent was 64 years of age; that he was a laboring man; that during the Second World War he had been in the military service in Canada and in the United States; that he had not been generally employed during the past four or five years but had been mostly living on a small pension; and that he was physically capable of performing gainful work...