Kelly v. Troy Laundry Co.

• Decision Date: 02 May 1928
• Docket Number: 4780
• Citation: Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222 (Idaho 1928)
• Parties: JAMES A. KELLY and SARAH KELLY, Respondents, v. TROY LAUNDRY COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

267 P. 222

46 Idaho 214

JAMES A. KELLY and SARAH KELLY, Respondents, v. TROY LAUNDRY COMPANY, a Corporation, Appellant

No. 4780

Supreme Court of Idaho

May 2, 1928

NEGLIGENCE - ACTION FOR DAMAGES - VOLUNTARY STATEMENT OF WITNESS-CROSS-EXAMINATION-CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF-EVIDENCE-SIMILAR CONDITIONS-INSTRUCTIONS.

1.Where, in action for death due to alleged negligent operation of automobile, one of plaintiffs' witnesses volunteered statement with reference to employment of defendant's driver, "At the time of criminal case, he wasn't then he came back for a time," proper remedy of defendant's counsel was by objection and motion to strike, and defendant had no right to cross-examine witness concerning the outcome of the criminal case.

2.In action for death resulting from collision between automobile and bicycle, direct examination of witness concerning conversation with automobile driver, which related solely to tire marks at place of accident, held not to warrant cross-examination of witness by defendant as to conversation concerning question whether car was at rest or in motion at time of collision.

3.Judgment will not be reversed for reason that instruction does not state all the law applicable to the facts of the case, where it appears that other instructions given, in themselves or in connection with others given, do correctly state the law.

4.In action for death resulting from negligence of defendant's employee in operating automobile, instruction permitting verdict for plaintiffs if the employee was negligent and deceased was not guilty of contributory negligence, held not to warrant reversal on account of omission of reference to whether employee was engaged in discharge of defendant's business, where such element was included in other instructions.

5.In action for death resulting from collision between automobile and bicycle, testimony as to distance within which car similar to that driven by defendant's employee would be able to stop, based on test made with similar car with brakes in like condition, carrying similar load on dry pavement held admissible, though conditions may not have been in all respects identical, objections to such evidence being addressed to its weight and not to its admissibility.

6.Similarity of circumstances and conditions must be left to sound discretion of trial court, and determined by him subject to review only by abuse, with reference to admission of comparative evidence.

7.Contributory negligence is a matter of affirmative defense to be specially pleaded and proven by C. S., sec. 6721, and burden of establishing contributory negligence as proximate cause of injury always rests on the defendant.

8.In action for death of boy riding bicycle resulting from collision with automobile, in which deceased's negligence was shown by violation of ordinance requiring lights defendant, nevertheless, had burden, under C. S., sec. 6721, to prove that deceased's negligence was the proximate cause of the injury.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County.Hon. O. R. Baum, Judge.

Action for damages for death of plaintiffs' minor son.Judgment for plaintiffs.Affirmed.

Judgment affirmed.Costs to respondents.

J. H. Peterson, T. C. Coffin and E. G. Frawley, for Appellant.

It is negligence per se to ride a bicycle on the streets of Pocatello, Idaho, after nightfall, without a light thereon.(Ebling v. Nielsen,109 Wash. 355, 186 P. 887.)

Where the negligence of the defendant contributes proximately to the injury complained of, plaintiff cannot recover.(Wheeler v. Oregon R. & Nav. Co.,16 Idaho 375, 102 P. 347.)

Plaintiffs' right to recovery is based upon the defendant's negligence.The burden is on them to plead and prove negligence.If the proof fails to establish negligence alleged in the complaint, they cannot recover.(McLean v. City of Lewiston,8 Idaho 472, 69 P. 478;Graham v. Coeur d'Alene & St. Joe Trans. Co., 27 Idaho 454, 149 P. 509;Fimple v. Southern P. Co.,38 Cal.App. 727, 177 P. 874;Searles v. Manhattan Ry. Co.,101 N.Y. 661, 5 N.E. 66;Antler v. Cox,27 Idaho 517, 149 P. 731;20 R. C. L., sec. 146, p. 177, sec. 161, p. 194.)

If a servant such as a driver turns wholly aside from the master's employment and goes on an independent journey wholly foreign to employment for a purpose exclusively his own, the master is not liable for his action during such time.(26 Cyc. 1537;McCarthy v. Timmins,178 Mass. 378, 59 N.E. 1038;Lima R. Co. v. Little,67 Ohio St. 91, 65 N.E. 861;Dells v. Stollenwerk, 78 Wis. 339, 47 N.W. 431.)

Contributory negligence precludes recovery.(Testo v. Oregon-Washington R. R. & Nav. Co.,34 Idaho 765, 203 P. 1065.)

The burden is upon the plaintiff to show not only that the person committing a tort was the servant of the defendant but that he was, at the time of the accident, actually engaged on his master's business.(Birmingham Mineral R. Co. v. Wilmer,97 Ala. 165, 11 So. 886;Dearholt Motor Sales Co. v. Merritt,133 Md. 323, 105 A. 316;Robinson v. Fitchburg &W. R. Co., 7 Gray (Mass.), 92;Strana v. William Messer Co.,137 N.Y.S. 914;West v. Kern,88 Ore. 247, 171 P. 413, 1050, L. R. A. 1918D, 920;Wilbur v. Forgione & Romano Co.,109 Me. 521, 85 A. 48;Stagg v. Taylor,119 Va. 266, 89 S.E. 237;Patterson v. Millican,12 Ala. App. 324, 66 So. 914;Southern Paramount Pict. Co. v. Gaulding,24 Ga.App. 478, 101 S.E. 311;Axtell v. Northern P. R. R. Co., 9 Idaho 392, 74 P. 1075.)

Jones, Pomeroy & Jones, for Respondents.

Evidence that an automobile bore the defendant's name is prima facie proof that it was owned by the defendant; that it was then in charge of his servant or agent and that it was being used in and about the defendant's business at the time.(Berry on Automobiles, 5th ed., secs. 1225, 1227;Benevento v. Poertner Motor Car Co.,235 N.Y. 125, 139 N.E. 213;Western Union Tel. Co. v. Scrivener,18 F.2d 162;Hartig v. American Ice Co.,290 Pa. 21, 137 A. 867;Frierson v. Pacific Gas & Electric Co., 55 Cal.App. 397, 203 P. 788.)

Proof that the driver was in defendant's employment at the time of the accident raises legal presumption that he was acting for the defendant within the scope of his employment and shifts the burden to the defendant to prove that the driver was not acting for him.(Wright v. Maddox(Tex. Civ. App.),286 S.W. 607;Salowitch v. Kres,147 Md. 23, 127 A. 643;Venghis v. Nathanson,101 N.J.L. 110, 127 A. 175;Rowland v. Spalti,196 Iowa 208, 194 N.W. 90;Ahlberg v. Griggs,158 Minn. 11, 196 N.W. 652;Sather v. Giaconi,110 Ore. 433, 220 P. 740;Giblin v. Dudley Hdw. Co.,44 R. I. 371, 117 A. 418;Jones v. Cook, 90 W.Va. 710, 111 S.E. 828.)

Where prima facie proof of ownership and operation of an automobile by a defendant is established and the defendant offers no countervailing evidence, the plaintiff is entitled to a directed verdict on this point.

The violation of an ordinance or law does not itself create a liability or bar a recovery unless it further appears that such violation was a proximate cause of an injury sustained.(Farrington v. Cheponis,84 Conn. 1, 78 A. 652;Broschart v. Tuttle,59 Conn. 1, 21 A. 925, 11 L. R. A. 33;Scott v. Dow,162 Mich. 636, 127 N.W. 712;McClain v. Lewiston Interstate Fair etc. Assn.,17 Idaho 63, 104 P. 1015, 25 L. R. A., N. S., 691;Hooker v. Schuler,45 Idaho 83, 260 P. 1027;Romano v. Short Line Stage Co., 142 Wash. 419, 253 P. 657.)

To render experiments permissible the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if they are substantially similar.In such case the objection is not addressed to the court on the ground of admissibility but to the jury on the ground of weight.(Note to8 A. L. R. 18-22.)

T.BAILEY LEE, J. Budge, Givens and Taylor, JJ., concur.

OPINION

T.BAILEY LEE, J.

This is a suit brought by James A. and Sarah Kelly, husband and wife, to recover damages of defendant, Troy Laundry Company, for the death of their son, Francis Kelly, alleged to have been caused in the city of Pocatello, February 6, 1925, by the negligence of defendant's truck driver, one Bruce.The complaint charged that defendant's agent and employee, while in charge of and operating a delivery automobile belonging to defendant, in the course and pursuit of defendant's business, did negligently, carelessly and in violation of city ordinance drive said automobile over a street intersection at such a high and dangerous rate of speed that he was unable to, and did not keep to the right of the center line of the street into which he turned, but projected said machine northeast across the said center line to within about fourteen feet of the north curb, colliding with and so injuring plaintiffs' son that he thereafter died.

The defendant, after denying the charge of negligence, affirmatively plead that the accident was proximately due to deceased's own negligence; it being alleged that he was traveling at a high rate of speed along the south and wrong side of the street on an unlighted bicycle more than one hour after sundown; that defendant's servant could not see him for any reasonable distance, and that deceased in endeavoring to avoid the collision swerved his bicycle into defendant's machine after it had been brought to a stop.There were introduced in evidence the city ordinances covering speeds, regulation of rights of way and the requirement that bicycles carry lights between one hour after sunset and one hour before sunrise.From the judgment entered upon a verdict in plaintiffs' favor, the defendant has appealed, assigning total insufficiency of the evidence and numerous errors.We think the evidence sufficient.

Plaintiffs' witness, Tiffany; had...