Jack v. Fillmore
| Decision Date | 17 October 1962 |
| Docket Number | No. 9162,9162 |
| Citation | 85 Idaho 36,375 P.2d 321 |
| Parties | Stella JACK and Richard Jack, Plaintiffs-Appellants, v. Gwen FILLMORE, Kenneth Fillmore, Lola Criddle and Rollan Montgomery, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Petersen, Moss & Olsen, Idaho Falls, for appellants.
Merrill & Merrill, Pocatello, Holden, Holden, Kidwell & Williams, Idaho Falls, for respondents
At approximately 6:50 p. m. on December 22, 1961, appellant Stella Jack was struck and injured by an automobile driven by respondent Gwen Fillmore in a westerly direction on Anderson Street in the city of Idaho Falls, Idaho. Anderson Street is a paved public street, approximately 46 ft. in width, extending in an easterly and westerly direction. Appellants' home is on the south side of said street and a dairy is located on the north side of the street almost directly north of appellants' home. At the time of the accident Stella Jack, while carrying some wood, was attempting to cross the street from north to south between the dairy and her home at a place other than a cross walk.
At the time Mrs. Jack attempted to cross said street a Ford sedan automobile (hereinafter referred to as the Criddle car) owned by respondent Rollan Montgomery and driven with his permission by respondent Lola Criddle was parked on the north side of the street with its front end facing east. Respondent Lola Criddle who parked the car left the headlights turned on at all times after parking, including the time when the accident occurred.
While Mrs. Jack was crossing said street, respondent Gwen Fillmore was driving her automobile in a westerly direction along Anderson Street. The Fillmore car struck Mrs. Jack at a point on said street approximately 10 ft. south of the north curb and 50 to 65 ft. west of the front end of the car which had been parked by Lola Criddle.
The allegations of negligence in the amended complaint are that respondent Lola Criddle was careless and negligent in so parking the Ford sedan with its headlights turned on causing a severe glare and obstruction to the vision of respondent Gwen Fillmore, which caused her the inability to maintain a proper lookout for persons in the roadway; that respondent Gwen Fillmore was careless and negligent in proceeding ahead so blinded without diminishing her speed or sounding a warning with her horn; that the actions of each of said respondents amounted to reckless disregard or consequences, or gross, wanton and reckless negligence.
After the filing of the amended complaint each respondent filed a motion to dismiss and motion to strike. It was stipulated that the motions for summary judgment which had been previously filed by each of the respondents could be considered as directed against appellants' amended complaint. Prior to the hearing on said motions the deposition of Stella Jack had been taken and filed; also interrogatories submitted by appellants to respondent Gwen Fillmore and her answers thereto, together with the affidavit of Grover B. McMurdo, a police officer, had been filed.
The court granted the motions for summary judgment stating the reason for such action to be that 'the Court being of the opinion that no material issue of fact has been shown to exist and that the plaintiffs have no claim and that defendants are entitled to judgment as a matter of law.'
By their assignments of error, appellants challenge the granting of the motions for summary judgment contending that the court erred in finding that appellant Stella Jack was guilty of contributory negligence as a matter of law. Although the summary judgment entered does not set forth such a finding, it is stated in the memorandum decision of the district judge that 'the Court is of the opinion that the plaintiff, Stella Jack, is guilty of contributory negligence as a matter of law.' Since that is the only reason stated in the memorandum opinion for concluding that appellants would not be entitled to recover from either or any of respondents it must be assumed that such conclusion was the basis for the decision.
In the memorandum opinion the court referred specifically to the ordinance of the City of Idaho Falls and the Idaho statutes dealing with the matter of crossing streets at other than cross walks, also the decisions of this Court in the cases of Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287 and Rosevear v. Rees, 77 Idaho 270, 291 P.2d 856, as authorities supporting the conclusion that Mrs. Jack was not entitled to recover because she was guilty of contributory negligence as a matter of law.
We deem it necessary to examine the authorities referred to for the purpose of determining what support they provide for the conclusion reached in this case.
In the case at bar a copy of the Idaho Falls ordinance referred to (Ordinance #896) was admitted in evidence pursuant to stipulation. Section VI of said ordinance provides that it shall be unlawful for any pedestrian to cross specified streets at any point other than within a cross walk. Anderson Street is not one of the specified streets. Said ordinance further provides:
'On every street, highway, avenue or drive in Idaho Falls, not designated in Section VI of this Ordinance, every pedestrian crossing a roadway at any point other than within a cross walk shall yield the right of way to all vehicles upon the roadway.'
Applicable statutes of this state are as follows:
'Crossing at other than cross walks.--(a) Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.'
'Drivers to exercise care.--Notwithstanding the foregoing provisions of this article, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing and child or any confused or incapacitated person upon a roadway.'
In Rosevear v. Rees, supra, it was admitted that the appellant was crossing the street in the middle of a block where no cross walk existed and in violation of the city ordinance involved which specifically prohibited the crossing of any street by a pedestrian except upon a cross walk. No summary judgment was involved. At the close of the evidence produced at the trial a motion by respondent for a directed verdict was granted. On appeal this Court concluded that since appellant was guilty of a direct violation of the ordinance his actions constituted negligence per se and affirmed the action of the trial court. Turner v. Purdum, 77 Idaho 130, 289 P.2d 608; Ineas v. Union Pac. R. Co., 72 Idaho 390, 241 P.2d 1178. The court also found that there was no evidence to invoke the doctrine of last clear chance.
In the instant case no comparable violation is involved since neither our statute nor the city ordinance specifically prohibits a pedestrian from crossing a roadway at any point other than within a cross walk.
In Laidlaw v. Barker, supra, the facts are substantially different from the facts in the instant case. The accident happened on a highway which had a posted speed limit of 60 miles per hour. The vehicle involved was traveling at a speed of about 55 miles per hour. The act of the pedestrian which created the peril occurred at practically the same time as the accident in that only six-tenths to seven-tenths of a second elapsed from the time the pedestrian's peril became apparent to the driver of the vehicle before the accident. Under such facts this Court held that the doctrine of the last clear chance was not applicable since the emergency was so sudden that there was no time to avoid the accident. No motion for summary judgment was involved.
In Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657, this Court had...
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