Jones v. Mikesh

• Citation: 95 P.2d 575,60 Idaho 680
• Decision Date: 27 October 1939
• Docket Number: 6598
• Parties: VERNA B. JONES, an Infant, Appearing by HARRY JONES, Her Guardian Ad Litem, Respondent, v. F. J. MIKESH, Appellant
• Court: United States State Supreme Court of Idaho

95 P.2d 575

60 Idaho 680

VERNA B. JONES, an Infant, Appearing by HARRY JONES, Her Guardian Ad Litem, Respondent, v. F. J. MIKESH, Appellant

No. 6598

Supreme Court of Idaho

October 27, 1939

APPEAL AND ERROR-SUFFICIENCY OF EVIDENCE-INSTRUCTIONS-HIGHWAYS.

1. A verdict will not be disturbed on appeal, because of conflict in evidence, if the evidence supporting verdict would be sufficient to sustain the verdict if uncontradicted.

2. Where evidence regarding truck driver's negligence and regarding his intoxication at time of accident was conflicting and that produced on behalf of plaintiff if uncontradicted was sufficient to sustain verdict and judgment for plaintiff, verdict would not be disturbed on appeal.

3. That instructions were given with respect to acts which were prima facie negligent or prima facie unlawful and in which definition of prima facie did not occur was not error, where court correctly defined and explained the meaning of prima facie in another instruction.

4. It is the duty of the jury to consider instructions together.

5. Where pedestrian's complaint for injuries sustained when struck by truck contained allegation that defendant drove truck while so intoxicated as to be unable to properly operate and manage it, instruction that it was unlawful for any person who was under influence of intoxicating liquor to drive vehicle on highway did not submit a matter outside issues, since the terms "intoxicated" and "under the influence of intoxicating liquor" are commonly understood to have the same meaning. (I. C. A., sec. 48-502.)

6. An instruction that neither a pedestrian nor an automobile has a superior right to any part of the highway, that each with respect to the other in use of highway is entitled to equality of right, that duty of exercising reasonable care was imposed alike on both pedestrian and driver, but that automobile being a dangerous instrumentality capable of inflicting fatal injuries, the comparative safety of its driver in case of a collision with a pedestrian was to be taken into consideration in measuring the duty of driver, was not conflicting.

7. The rights of a pedestrian and the driver of a motor vehicle to use of public highway are equal and their duties to each other are reciprocal, but the one having the greater power to do injury owes to the other a comparatively greater duty to exercise care in the use of that power.

8. A litigant has a right to have issues presented by his pleadings, when supported by any competent evidence submitted to the jury by proper instructions.

9. In pedestrian's action for injuries sustained when struck by motor truck, evidence was sufficient for jury on question of permanent injury to pedestrian and justified refusal to give instruction withdrawing such question from jury.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. A verdict will not be disturbed on appeal, because of conflict where evidence supporting it would be sufficient to sustain it if uncontradicted.

II. It is the duty of the jury to construe the instructions together, and where the term "prima facie" is properly defined, and the meaning thereof explained, in one instruction, it is not necessary to define and explain it in each instruction wherein it is used.

III. In Idaho the terms "intoxicated" and "under the influence of intoxicating liquor" are commonly understood to mean the same, and where it was alleged in the complaint that the defendant drove a truck while so intoxicated as to be unable to properly operate and manage it, and the judge instructed the jury to the effect that it was unlawful for any person, under the influence of intoxicating liquor, to drive a vehicle on the highway, the instruction could not have misled the jury into deciding an issue not presented by the complaint.

IV. While the right of a pedestrian and the driver of an automobile to the use of a public highway are equal, and their duties to each other are reciprocal, the one having the greater power to do injury owes to the other a comparatively greater duty to exercise care in the use of that power.

V. A party litigant has a right to have the issues presented by his pleadings, when supported by any competent evidence submitted to the jury by proper instructions.

VI. Evidence examined and found sufficient to justify a refusal to give an instruction, requested by defendant, intended to take from the jury the question of permanent injury to plaintiff.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. James W. Porter, Judge.

Action for damages for personal injuries. From a judgment based on a verdict in favor of plaintiff and from an order denying a motion for a new trial defendant appeals. Affirmed.

Judgment and order affirmed. Costs awarded to respondent.

Paul S. Boyd, Chapman & Chapman and Lionel T. Campbell, for Appellant.

It is error to charge the jury with reference to an issue of driving while under the influence of intoxicating liquors when the complaint makes the issue one of driving while so intoxicated as to be unable to properly operate the automobile. (Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A. L. R. 317.)

Intoxication involves inebriety, drinking of excessive quantities of intoxicants with resulting impairment of capacity of action. (Commonwealth v. Whitney, 65 Mass. 477; Standard Life & Acc. Ins. Co. v. Jones, 94 Ala. 434, 10 So. 530, 532; Mullinix v. People, 76 Ill. 211, 213.)

It is improper for the court to submit to the jury an issue of law, which the court is duty bound to decide. The jury may not measure the duty of a driver as to the exercise of care; that is for the court. (O'Connor v. West Sacramento Co., 189 Cal. 7, 207 P. 527; Rocha v. Hulen, 6 Cal.App. (2d) 245, 44 P.2d 478; Haney v. Takakura, 2 Cal.App. (2d) 1, 37 P.2d 170.)

James R. Bothwell and Harry Povey, for Respondent.

Instruction as to appellant operating truck while under the influence of intoxicating liquor in violation of I. C. A., sec. 48-502, was justified by evidence and in substantial conformity with pleadings. (I. C. A., sec. 48-502; Packard v. O'Neil, 45 Idaho 427, 435, 262 P. 881, 56 A. L. R. 317; 64 C. J. 759, sec. 656.)

Evidence justified giving of instructions covering statutes prohibiting driving while under influence of intoxicating liquor, reckless driving, and driving at excessive speeds, and these statutory violations were not unduly emphasized. (I. C. A., secs. 48-503, 48-504, 48-502.)

"Prima facie" is a term of common use and not technical. (Gillies v. Robert E. Lee Min. Co., 78 Mont. 402, 254 P. 422; Huber v. Scott, 122 Cal.App. 334, 10 P.2d 150, 153.)

Instruction outlining rights and duties of driver and pedestrian correctly stated the law and was not confusing or misleading, particularly when considered with other instructions given. (Patterson v. Wagner, 204 Mich. 593, 171 N.W. 356, 358; Weihe v. Rathjen Mercantile Co., 34 Cal.App. 302, 167 P. 287; Minor v. Stevens, 65 Wash. 423, 118 P. 313, 42 L. R. A., N. S., 1178; Raymond v. Hill, 168 Cal. 473, 143 P. 743, 747; Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, Ann Cas. 1916E, 656, 51 L. R. A., N. S., 989.)

MORGAN, J. Ailshie, C. J., Budge, J., and GIVENS, J., Concurring. HOLDEN, J., Concurring in Part and Dissenting in Part.

OPINION

MORGAN, J.

--December 20, 1936, at about 10:30 o'clock P. M., respondent and a boy named Don Conyers were walking along the highway between Buhl and Hagerman when they were overtaken and struck by an auto truck driven by appellant, as a result of which respondent was seriously injured. The accident occurred at a curve in the road at the top of what is known as Banbury Grade. This action was commenced by respondent who was an infant and who appeared by Harry Jones, her father, as her guardian ad litem. It is alleged in the complaint that plaintiff, observing the lights of the approaching truck, stepped into the borrow-pit on the easterly side of the highway and was standing in the borrow-pit approximately five feet from the outer edge of the oiled portion of the highway; that defendant, at said time and place, was driving and operating a Dodge pick-up truck in a northerly direction along the highway, with three other persons occupying the cab of the truck with him; that the defendant recklessly, carelessly and negligently drove the truck at a dangerous and excessive rate of speed along the highway and as a direct and proximate result of such negligence and carelessness, drove it off the oiled portion of the highway and into the borrow-pit on the easterly side thereof, striking plaintiff with the truck, hurling her a distance of approximately sixty feet and rendering her unconscious; that by reason of the negligent acts of defendant, as aforesaid, plaintiff suffered a compound, comminuted fracture of the left tibia and fibula and also cuts and bruises. Ambulance, hospital and medical and surgical expenses were alleged; also, "that as a result of said injuries the plaintiff will be permanently injured and damaged in the use of her left limb, all to plaintiff's damage in the sum of $ 10,000.00."

For a second cause of action plaintiff adopted the allegations of her first cause of action and alleged:

"that said defendant at said time and place, while so intoxicated as to be unable to properly operate and manage said truck was driving and operating a Dodge pick-up truck in a northerly direction along said highway with three other persons occupying the cab of said truck besides said defendant; that said defendant at said time and place and while so intoxicated, recklessly, carelessly and negligently drove said truck at a dangerous and excessive rate of speed along said highway and as...