Jackman v. Hamersley

• Decision Date: 05 February 1952
• Docket Number: No. 7797,7797
• Citation: 72 Idaho 301,240 P.2d 829
• Parties: JACKMAN v. HAMERSLEY et al.
• Court: Idaho Supreme Court

Page 829

240 P.2d 829

72 Idaho 301

JACKMAN v. HAMERSLEY et al.

No. 7797.

Supreme Court of Idaho.

Feb. 5, 1952.

Richards, Haga & Eberle and Karl Paine, all of Boise, for appellant.

Elam & Burke, Walter M. Oros, and William W. Barrett, all of Boise, for respondent.

THOMAS, Justice.

Respondent, hereinafter referred to as the plaintiff, instituted an action to recover damages for personal injuries against Robert L. Hamersley and his son, James Hamersley, a minor, by and through Robert L. Hamersley as guardian ad litem.

A motion for nonsuit was granted as against the father; from a verdict and judgment for the plaintiff against the minor by and through his father as guardian ad litem, the minor, through such guardian, appealed. There is no cross-appeal from the judgment of nonsuit.

While the plaintiff was walking on the sidewalk in front of the home of the grandparents of James Hamersley on West Jefferson Street in Boise, Idaho, she observed the child, his dog and his small wagon, about 12 to 14 inches wide and approximately 18 to 24 inches long, on the parking between the sidewalk and the curb; plaintiff spoke to the boy and made an observation that the dog did not make a very good horse, but she did not stop. The boy had tied one end of a rope to the handle of the wagon and the other end of the rope was around the neck of the dog. After plaintiff, who was looking ahead in the direction she was walking, had taken four or five rapid steps, the dog, without any warning to her, moved diagonally in front of plaintiff towards the entrance of the residence of the boy's grandparents; the dog was pulling the wagon, which struck plaintiff, causing her to fall to the sidewalk and sustain serious injuries.

The action was premised on general negligence and negligence in the violation of Ordinance No. 1856 of Boise City with reference to the operation and regulation of vehicles.

It is contended by defendant that the facts are not in dispute and that they establish the negligence of the plaintiff as the proximate cause of the injury for the reason that after plaintiff had observed the presence of the small boy, the dog and the wagon, she did not conduct herself as an ordinary, prudent person would under such circumstances; that even though she must have realized the menace and hazard she continued to walk forward without even glancing over her shoulder to see what the dog might be doing and thereby ignored a known hazard and danger; that her conduct in these respects, it is urged, constituted negligence on her part as a matter of law.

Closely akin to the contention that such acts of the plaintiff constituted negligence as a matter of law is the further contention of the defendant that the plaintiff, an adult person, must expect that a child of tender years will act on childish impulses and instinct and the failure of an adult to calculate such impulses and instincts constitutes negligence.

Again, it is urged that the evidence does not in any respect establish negligence on the part of the boy and that the court should have either taken from the jury the question of the negligence of the boy or instructed the jury that he was not in fact negligent. To support this contention defendant urges that the boy, who had never attemped to hitch the dog to a wagon prior to the day in question did not know or have reason to believe that he might create a hazard; there is some evidence in the record that the dog was quite difficult to handle at times and that he had been tied to the wagon and was on the sidewalk for at least ten minutes prior to the accident, and that the boy was alert, intelligent and quite advanced for his age.

The substance of the contentions of the defendant with reference to negligence and contributory negligence is to the effect that, because there was no conflict in the evidence, as a matter of law the question of negligence, contributory negligence and proximate cause should have been determined by the court and not by the jury.

This court has repeatedly held that where the evidence on material facts is conflicting or where on undisputed facts reasonable and fair-minded men may differ as to the inferences and conclusions to be drawn therefrom, or where different conclusions might reasonably be reached by different minds, the question of negligence, contributory negligence and proximate cause is one of fact to be submitted to the jury and not a question of law for the court. Stowers v. Union Pacific R. Co., Idaho, 237 P.2d 1041, and the collection of authorities set forth therein. See also Wright v. Sniffin, 80 Cal.App.2d 358, 181 P.2d 675; Gallardo v. Luke, 33 Cal.App.2d 230, 91 P.2d 211.

Error is assigned in giving Instruction No. 9 to the jury. In giving Instruction No. 9, the court therein called to the attention of the jury the definition of a vehicle as set forth in the ordinance and then went on to instruct the jury therein that it was for the jury to determine whether or not the dog and wagon constituted a vehicle within the meaning of the alleged ordinance and also whether or not the ordinance was an ordinance of the City of Boise.

Ordinance No. 1856 defines a vehicle in the following language:

'For the purpose of this ordinance the following words and phrases shall have the meaning respectively ascribed to them as follows:

'a. Vehicle. Every device in, upon, or by which any person or property is or may be transported or drawn upon a street or highway except devices moved solely by human power or used exclusively upon stationary rails or tracks; for the purpose of this ordinance a bicycle or a ridden animal shall be deemed a vehicle.'

Whether or not the city ordinance existed in this case was a question for the court and not for the jury. Walsh v. Public Service Co. of N. H., 92 N.H. 331, 30 A.2d 494. It was error for the court to submit to the jury the question of determining whether or not Ordinance No. 1856 was an ordinance, yet the submission of this matter to the jury was not prejudicial but favorable to the defendant and its submission to the jury does not constitute reversible error. A. J. Knollin & Co. v. Jones, 7 Idaho 466, 63 P. 638; Saccamonno v. Great Northern Ry. Co., 30 Idaho 513, 166 P. 267; Lufkins v. Collins, 2 Idaho, Hasb., 256, 10 P. 300; New England Nat. Bank of Kansas City v. Hubbell, 41 Idaho 129, 238 P. 308.

The construction of a city ordinance is a question of law for the court and not one of fact for the jury. Walsh v. Public Service Co. of N. H., supra. It was error for the court to submit to the jury the question of determining whether or not the instrumentality was a vehicle within the meaning of the ordinance; if the instrumentality is a vehicle within the meaning of the ordinance, the error in submitting such question to the jury was not injurious or prejudicial to the defendant, as the jury might have...