Hunter v. Horton

• Decision Date: 24 December 1958
• Docket Number: No. 8642,8642
• Citation: 333 P.2d 459,80 Idaho 475
• Parties: Rollin HUNTER and Audrey Hunter, husband and wife, Plaintiffs-Appellants, v. Gene HORTON and Josephine Horton, husband and wife; Claire Horton, and Lois J. Yost, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 459

333 P.2d 459

80 Idaho 475

Rollin HUNTER and Audrey Hunter, husband and wife, Plaintiffs-Appellants, v. Gene HORTON and Josephine Horton, husband and wife; Claire Horton, and Lois J. Yost, Defendants-Respondents.

No. 8642.

Supreme Court of Idaho.

Dec. 24, 1958.

Anderson, Kaufman & Anderson, Boise, for appellants.

Elam & Burke, Boise, for respondents.

TAYLOR, Justice.

Plaintiffs (appellants) brought this action to recover damages for the death of their minor daughter, who was killed May 26, 1956, while a guest in an automobile--a Willys Jeepster--owned by the parents of defendant (respondent) Lois Yost. The vehicle at the time of the accident was driven by defendant (respondent) Claire Horton, with the permission of Lois Yost, who was present in the automobile. Claire Horton was a minor of the age of 15 years who had been issued a driver's license on an application signed by the defendants (respondents) Gene and Josephine Horton, her parents.

Viewed in the light most favorable to the plaintiffs, the evidence tends to show the following facts. On the day of the accident a group of six teen-age girls went on a picnic at State Park on the Boise river near Lucky Peak dam. From there the girls went to Idaho City, Lois Yost driving. On the way back and at a point above the dam, Lois permitted Claire Horton to drive the car. There were three girls in each seat. Lois sat in the middle in the front seat and deceased, Mardy Hunter, sat in the middle in the back seat. Thereafter, Claire drove the car between 50 and 60 miles per hour, and at times on the wrong side of the road around curves. On one occasion, 'we met an oncoming car which we had to pull over fast or we would have hit it.' At Lucky Peak dam the driver attempted to drive up a concrete slab six to eight feet high, pitched at an angle of about 45 degrees. Thereafter, she drove on some dirt roads on the far side of the river, some of which were on sloping hillsides where the car tipped considerably, frightening some of the girls, who thought it might tip over. Back on the highway the car was driven between 50 and 60 miles per hour. On one occasion, while rounding a blind curve, the Jeep was passing a car driven by a witness, Mrs. Peters, and there met a funeral procession proceeding in the opposite direction. Mrs. Peters pulled to the right, as did the funeral procession, and the Jeepster 'just barely made in between.' Both Mrs. Peters, and the driver leading the funeral procession, were impressed by the incident, and the latter estimated the speed of the Jeepster at between 45 and 55 miles per hour. Thereafter, the Peters car passed the Jeep, and later was again passed by the Jeep, at which time one of the occupants, identified by voice as decedent, was heard to yell, 'What's the hurry?' and a reply was heard from the front seat, 'We are going to town.' Shortly thereafter, the Jeep was driven around a sharp curve to the left at a speed described by one of the girls as 'awful fast,' frightening the girls in the car. Several protests were made during the course of these events by various passengers in the Jeep, including the deceased.

Thereafter, and just prior to the accident, the Jeepster came up behind a car owned and driven by a Mr. Baker, in which the witness, Patricia Coleman, was the only other passenger. The Baker car was traveling at 35 miles per hour. The girls pulled out as though to pass and then pulled back in behind the Baker car again. One of the girls testified that this was done to permit a car, coming from the opposite direction, to pass. The witness, Coleman, said there was no other car coming. The Jeep then pulled out from behind the Baker car and in passing on a slight curve to the right, its left wheels slipped off the left edge of the hard surfaced highway onto the graveled shoulder. It then veered to the right across the highway, and then back across the highway and into the borrow pit on the left, where it came to rest bottom side up. Mardy Hunter was killed as a result of the accident.

One of the girls estimated the speed of the Jeep as it passed the Baker car at 50 to 60 miles per hour, and the speed of the Baker car at 45 miles per hour. Miss Coleman testified that she and Mr. Baker had gone for a ride up to Lucky Peak and had maintained a speed of not over 35 miles an hour; that they were traveling at that speed when the girls came up behind them; that in passing them the Jeepster traveled at the usual speed of a car passing another at such speed. The applicable speed limit was 50 miles per hour.

At the place of the accident the hard surface of the highway was 20 to 22 feet wide with graveled shoulders on each side, and a slight drop off from the edge of the hard surface to the gravel. Skidmarks were left on the highway for a distance of 99 feet and it was 73 feet from the point where the marks left the highway to the point where the car came to rest.

The accident occurred in midafternoon. The view of the road ahead was free of obstruction and clear to the view of the driver of the Jeep at all times, except such obstruction as would be occasioned by the Baker car when the Jeepster was following behind it. There was no car coming from the opposite direction, or any obstruction to the free use of the left hand lane for the purpose of passing the Baker car.

On trial at the close of plaintiffs' evidence the court granted defendants' motion for nonsuit. Plaintiffs brought this appeal from the judgment entered thereon.

In granting the motion the trial judge said:

'* * * I am of the opinion that while the evidence indicates that there was at least evidence of reckless driving prior to the time of the accident, that at the time of the accident the plaintiff hasn't sustained its burden of proof to show the reckless disregard required by our statutes. All of the evidence seems to indicate at that time the proximate cause of the accident was an unfortunate circumstance, but there is no evidence that defendant Claire Horton at that particular time or even immediately prior thereto was driving as required by the guest statute.'

The question presented is the sufficiency of the evidence to raise an issue for the jury as to whether the death was caused by conduct of the driver amounting to 'reckless disregard of the rights of others', as required by the guest statute, I.C. § 49-1401.

'* * * The term 'reckless disregard' as used in said section means an act or conduct destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong rash; wanton disregard, or conscious indifference to consequences.' Foberg v. Harrison, 71 Idaho 11, at page 16, 225 P.2d 69, at page 71.

The foregoing definition of reckless disregard has been applied by this court in subsequent cases. In Mason v. Mootz, 73 Idaho 461, 253 P.2d 240, we said:

'* * * reckless disregard, within the meaning of the guest statute, requires proof of an absence of heed or concern for consequences, a heedlessness of danger, a 'wanton disregard, or conscious indifference to consequences.' This implies a consciousness of danger and a willingness to assume the risk, or an indifference to consequences.' 73 Idaho at page 468, 253 P.2d at page 243.

In that case it was held that driving in the nighttime at 'considerable speed' down a slope into a hollow where the car ran off the road while the driver was attempting to avoid collision with horses thereon, and where the car turned end over end, killing a guest, was not sufficient to establish reckless disregard on the part of the driver.

In Riggs v. Roberts, 74 Idaho 473, 264 P.2d 698, it was held that driving at 65 miles per hour on a black top highway with a total weight of passengers and car of 4,700 pounds, in warm weather, with a left rear tire which was worn smooth and which blew out, causing injury, did not establish reckless disregard.

In Turner v. Purdum, 77 Idaho 130, 289 P.2d 608, we held that driving at night at 45 to 50 miles per hour, when the wind was blowing and there was some dust in the air and occasional sprinkles of rain, when the car crashed into a potato digger being towed upon the highway by a tractor, upon the rear of which was a white light reflecting downward across the digger, was not reckless disregard. There we said:

'* * * The evidence does not disclose that respondent Purdum was driving at a rate of speed which could constitute more than ordinary negligence under the circumstances. His failure to see the potato digger in time to avoid the accident could not be more than ordinary negligence. There is nothing in the record to indicate that respondent Purdum was or should have been conscious of danger and to indicate a willingness on his part to assume the risk, or an indifference to consequences.' 77 Idaho at page 138, 289 P.2d at page 612.

In Wilson v. Bacon, 78 Idaho 389, 304 P.2d 908, 909, we held that a complaint which charged that the defendant drove into an intersection of a busy highway without looking either to the right or to the left, and directly into the path of a truck approaching from the right at a speed of 40 miles per hour and plainly visible, did not state a cause of action under the guest statute. There we quoted from 2 Restatement of the Law of Torts, § 500 g., as follows:

'Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency in that reckless misconduct requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.' 2 Restatement of the Law of Torts, § 500g.

In Grant v. Clarke, 78 Idaho 412, 305 P.2d 752, we held that driving in the nighttime with the car...