Jones v. Talbot

• Decision Date: 23 July 1964
• Docket Number: No. 9433,9433
• Citation: 394 P.2d 316,87 Idaho 498
• Parties: H. Alvaro JONES, Plaintiff-Appellant, v. Albert V. TALBOT, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 316

394 P.2d 316

87 Idaho 498

H. Alvaro JONES, Plaintiff-Appellant, v. Albert V. TALBOT, Defendant-Respondent.

No. 9433.

Supreme Court of Idaho.

July 23, 1964.

Gee, Hargraves & Armstrong, Pocatello, for appellant.

Hugh C. Maguire, Jr., and Jones, Pomeroy & Jones, Pocatello, for respondent.

McQUADE, Justice.

On January 8, 1962, plaintiff-appellant, H. Alvaro Jones, filed a complaint against the defendant-respondent, Albert V. Talbot, seeking general and special damages for injuries. It was alleged therein that respondent had driven his automobile in a negligent manner, causing a collision with a motorcycle driven by appellant. An amended complaint was filed on February 17, 1962.

Respondent filed an answer to the amended complaint on March 2, 1962, in which he denied negligence and alleged contributory negligence on the part of appellant. Respondent further alleged that appellant had the last clear chance to avoid the accident.

The jury verdict was rendered in favor of respondent and against appellant. Judgment for respondent on the jury verdict was duly entered, from which appellant takes this appeal.

Main Street in Preston, Idaho, is U. S. Highway 91 and State Highway 34. It runs north and south and is wide enough to accommodate two lanes for vehicular travel in each direction in addition to a parking lane on each side for parallel parking.

On Sunday morning, March 19, 1961, appellant and his brother-in-law, Bud Call, were riding appellant's Harley-Davidson motorcycle on the inside lane for north-bound traffic on Preston's main street. Appellant slowed at the Oneida Street intersection, shifted gears and continued north. The highway was dry and the weather was clear and bright.

Shortly prior thereto, respondent and his son-in-law, Raymond L. Villiard, drove into and parked in an alleyway immediately north of the Arctic Circle Drive Inn on the east side of Main Street in Preston. Their purpose was to look at a used Dodge automobile in the car lot near the alley. After spending approximately ten minutes in the car lot, the pair returned to respondent's automobile, a 1955 Plymouth, and respondent began to drive out of the alley-way and onto Main Street. His purpose was to cross the northbound traffic lanes and turn south.

Respondent's view to his left was obstructed by the Arctic Circle building until he arrived at the sidewalk area. However, he testified at the trial that the road appeared to be clear when he pulled out into the main stream of traffic and he only saw appellant's motorcycle when it was about to strike the front of his automobile. Respondent further testified that he then accelerated the speed of his automobile in an unsuccessful attempt to avoid a collision.

Appellant's motorcycle struck the automobile near its left rear door and wheel. After the impact the automobile was facing east while appellant and Call were found some distance north of the point of impact. There were 24 feet of skid marks to the point of impact left by the motorcycle and no skid marks left by respondent's Plymouth automobile. The collision occurred in midblock across from the Arctic Circle Drive Inn and approximately 300 feet north of the Oneida Street intersection.

At the trial appellant produced evidence tending to show that respondent was negligent in failing to yield the right-of-way and in failing to stop before entering the main street. Respondent, on the other hand, produced evidence tending to show that appellant was contributorily negligent in speeding and failing to keep a proper lookout. As noted previously, the jury awarded its verdict to respondent.

Appellant contends that the jury arrived at its verdict because of errors which were committed by the trial court. Specifically, appellant asserts the trial court erred in refusing to admit certain evidence and testimony and in giving and omitting certain instructions.

The investigating officer testified that shortly after the collision occurred the respondent admitted that 'he was at fault, that he would take care of it.' This admission was again received into evidence when the appellant testified that in various conversations after the collision respondent had said to appellant that 'he was sorry that it happened and he still figured he was to blame for what happened, * * *.'

In the same context, however, appellant attempted to introduce into evidence a conversation which supposedly occurred several months after the crash, in which respondent allegedly told appellant 'he had received a ticket for failure to yield the right-of-way; that he felt that he was guilty, and that he pleaded guilty and paid a fine,' and 'that he had received a ticket for failure to yield the right-of-way, that his insurance man told him to plead not guilty, but that he felt that he was guilty, and that he did plead guilty and paid a fine.' Upon timely objection by respondent, the trial court held the conversation was inadmissible because of I.C. § 49-1119:

'Evidence of conviction inadmissible in a civil action.--No evidence of the conviction of any person for any violation of this act shall be admissible in any court in any civil action.'

Appellant contends that the statute does not apply in this instance. He argues that it was not his intent to introduce evidence of a conviction but merely evidence of a plea of guilty and that the statute does not exclude evidence of a plea.

In Utah Farm Bureau Ins. Co. v. Chugg, 6 Utah 2d 399, 315 P.2d 277, 279-280 (1957), the Utah Supreme Court, under an identical statute, considered the same question raised herein as follows:

'Appellant also contends that the court erred in admitting in evidence as an admission against interest a plea of guilty to drunken driving by Chugg in a criminal proceeding arising out of the accident involved herein because Sec. 41-6-170, U.C.A.1953, provides that:

"No record of the conviction of any person for any violation of this act shall be admissible as evidence in any court in any civil action.' (Uniform Act Regulating Traffic on Highways.)

'We agree. The above quoted statute clearly prohibits the admission in evidence of a record of conviction of a violation of the Uniform Act Regulating Traffic on Highways. A plea of guilty is as much a conviction as a verdict and judgment to that effect and therefore under the provisions of this statute should not have been admitted in evidence. * * *'

The same conclusion also has been reached by the Supreme Courts of Colorado and Minnesota under similar statutes. Ripple v. Brack, 132 Colo. 125, 286 P.2d 625 (1955); Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528 (1943). In both jurisdictions it was pointed out that any other construction of the statute would fail to take into consideration the general purpose of the legislature in enacting such a provision. As noted by the trial court, appellant's purpose was to achieve by indirection what the statute prohibits directly. The evidence was properly excluded.

The next error assigned by appellant concerns three photographs, plaintiff's Exhibits A, B and C, which the trial court refused to admit into evidence; all three purported to be representative views respondent had as he proceeded from the alleyway into Preston's main street and all three were taken after the street had been widened and subsequent to the collision.

The witnesses who were called upon to identify the photographs both testified that a number of changes had occurred between the time of the collision and the time the photographs were taken. Specifically, it was noted that in Exhibits A and B the road had been widened, the sidewalk had been changed and a fence had been added to the left side of the alleyway. In Exhibit C it was pointed out that in addition to changes which had been made in the road and sidewalk, traffic conditions were different than they had been on the day of the collision.

In State ex rel. McKinney v. Richardson, 73 Idaho 9, 277 P.2d 272 (1954), it was stated that such matters as the admission of photographs should generally be left to the discretion of the trial court. The testimony presented hereinabove only illustrates that the trial judge did not err in ruling that the photographs failed to accurately portray conditions as they existed at the time of the accident.

On rebuttal appellant attempted to introduce into evidence the testimony of Police Chief Ward concerning a skid mark test which had been made by the 1955 Plymouth driven at 25 miles per hour. The testimony was rejected by the trial court and the appellant assigns this as error.

A large amount of discretion is vested in the trial judge with reference to the admission of rebuttal testimony; and unless it is clearly shown such discretion was abused, the appellate court will not disturb the ruling of the lower court. Stuchbery v. Harper, 86 Idaho ----, 390 P.2d 303 (1964); State v. Mundell, 66 Idaho 339, 158 P.2d 799 (1945); State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933).

As noted previously, respondent's automobile did not leave skid marks at the scene of the collision. All of the evidence was to the effect that respondent attempted to accelerate when he saw appellant's motorcycle approaching. As a matter of fact, no skid marks were left by any automobile in the entire case.

In addition, Chief Ward testified that he was not present at the time the skid marks were measured and he did not know how the measurements were taken. Appellant contends that Ward's testimony would have been of value for impeachment purposes. However, in light of the circumstances noted above, the trial court did not commit error in excluding this particular evidence.

On rebuttal appellant also attempted to offer into evidence a test made, showing that a Harley-Davidson motorcycle traveling at 25 miles per hour would leave skid marks of 59 feet 9 inches. This evidence was properly excluded by the trial court. Appellant's motorcycle left only 24 feet of skid marks, but the skid...