Kidd v. Gardner Associated, Inc.

• Decision Date: 25 November 1968
• Docket Number: No. 10167,10167
• Citation: 447 P.2d 414,92 Idaho 548
• Parties: Foryl KIDD, Zula Kidd and Susan Kidd, a minor, by Foryl Kidd, her guardian ad litem, Plaintiffs-Appellants, v. GARDNER ASSOCIATED, INC., and Clark R. Gardner, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 414

447 P.2d 414

92 Idaho 548

Foryl KIDD, Zula Kidd and Susan Kidd, a minor, by Foryl Kidd, her guardian ad litem, Plaintiffs-Appellants, v. GARDNER ASSOCIATED, INC., and Clark R. Gardner, Defendants-Respondents.

No. 10167.

Supreme Court of Idaho.

Nov. 25, 1968.

Rehearing Denied Dec. 20, 1968.

Young & George, Rigby, for appellants.

Maguire & Kisling, Pocatello, for respondents.

TAYLOR, Justice.

Plaintiffs (appellants) brought this action to recover damages for personal injuries sustained by Zula and Susan Kidd resulting from a collision between a pickup truck driven by plaintiff Zula Kidd and a pickup truck driven by defendant (respondent) Clark R. Gardner and owned by defendant (respondent) Gardner Associated, Inc. During the course of trial the claim for damages for personal injuries to Susan Kidd was abandoned by plaintiffs. The jury returned its verdict in favor of the defendants on the claim for damages to plaintiff Zula Kidd, and plaintiffs appealed.

The accident occurred in Madison County on July 7, 1965, at the 'Weeks Corner' intersection of a two-lane north-south road (Archer Road) and a one-lane east-west road. Archer Road was at the time under reconstruction from the intersection north. From the intersection to the south there was no public road in existence at the time of the accident. At that time traffic going south on Archer Road turned east at this intersection on the road upon which Mrs. Kidd was approaching the intersection from the west. A part of the work being done by defendant Gardner Associated was to construct a new road from the intersection extending south down to the South Fork of the Snake River, where a bridge was to be constructed across the river. The sheriff, who, together with his deputy, made an investigation at the scene of the accident, referring to the road being constructed to the south, testified:

'Q And do you recall how close to the west edge of the road it was where the vehicle had been traveling south?

'A Well, going by this diagram, it would be six inches from the edge of the road. That wasn't much of a road on that end of it. That was just made passable for these trucks because it had been opened up just at the time that these people started hauling gravel out of there.

'Q That had been for some time though, hadn't it?

'A Well, that summer. I don't recall when it was opened. I lived there all my life and that road was never there until these people started hauling gravel out of there and that was just a few months prior to this accident.'

On the south side of the intersection and on each side of the opening where the trucks entered and left the intersection two barricades had been set up, one on the east and one on the west of the opening, bearing the words, 'ROAD CLOSED' and 'DETOUR' and a black painted arrow pointing to the east, thus directing traffic moving south on Archer Road not to enter upon the extension being constructed to the south, and to turn to the east.

The width of the traveled portion of Archer Road north of the intersection was 21 feet. Part of the construction involved widening of the traveled portion to 32 feet. The width of the east-west road was not shown by the record, except that where it crossed ditches on bridges it was not wide enough for two cars to pass. The surface of both roads at the intersection was gravel.

There was a bridge over a ditch which crossed the east-west road on the west side of the intersection. This bridge was estimated to have been located five to fifteen feet west of the west side of Archer Road at the intersection.

Zula Kidd was driving a pickup truck east on the one-lane road, her daughter Susan accompanying her as a passenger. Clark Gardner was driving a pickup truck south on Archer Road.

Mrs. Kidd testified that the road upon which she was traveling was a county road. Whether she was qualified to so testify was not tested upon cross-examination and her testimony on this point was not refuted. Upon being asked as to the speed at which she had been traveling along the one-way road toward the intersection, Mrs. Kidd testified:

'A It is a winding road and I wasn't going very fast. About five or ten miles an hour.'

In describing her approach to the intersection and the accident Mrs. Kidd further testified:

'Q Now, did you-what did you do as you approached this intersection?

'A As I approached the intersection, I slowed up and came to a near stop at the bridge and reasonably where I could look out to the road to see if there was anything coming, and I couldn't see anything, so, I eased out into the intersection.

'Q Did you do anything as to the manipulation to the car?

'A I put on the brakes and shifted into low.

'Q You shifted gears on the truck?

'A Yes.'

Clark Gardner testified that as he was proceeding south on Archer Road he estimated his speed to be around 30 miles an hour; that the road was under construction and was in a rough condition; and further:

'Q Where were you on the road? What was your position, the position of your vehicle at the time that you first observed Mrs. Kidd?

'A Well, I was in the intersection and I just noticed out of the corner of my eye that there was another vehicle right there coming across that bridge and that's when I first became aware that she was there.

'Q Did you have an opportunity to observe the speed at which Mrs. Kidd was traveling?

'A The only observation that I would be able to make would be when I saw her that I knew a collision was imminent and that there was nothing that I could do really to avoid it at that time.

'Q Well, was she going in your opinion slow, fast, or what miles per hour?

'A Well, I think she was going faster than 10 miles an hour.

'Q Did you have any opportunity or any time to do anything or did you do anything to avoid the collision?

'A I didn't have time to do anything. It was a matter of a second, just a look and there it was.

'Q Do you recall whether or not you had seen Mrs. Kidd in time to apply your brakes?

'A I didn't have time to put on the brakes, no.'

Mr. Gardner did not testify that he slowed his speed on approaching or entering the intersection.

The sheriff testified that the Gardner truck left about four feet of skid marks. Mrs. Kidd's vehicle left eight feet of skid marks. Both trucks suffered extensive damage and Mrs. Kidd was severely injured.

At the time of the accident defendant Gardner Associated, Inc. was employed in the reconstruction of Archer Road in the general vicinity of the intersection. Vehicles belonging to the company were hauling materials to a point near the intersection, and in so doing crossed the intersection at frequent intervals. The contract between Gardner Associated and the prime contractor required Gardner Associated to 'provide and maintain proper warning signals, signs, lights, barricades and fences on and along the line of said work, and shall take all other necessary precautions for the protection of the work and safety of the public.' It was admitted that at the time of the collision there was no stop or truck-crossing sign to warn the public traveling on the east-west road of the construction activity on the north-south road. Gardner Associated claimed that ordinarily a portable warning sign was maintained at the intersection and that the construction area was checked periodically to insure that the sign had not been removed. Clark Gardner was employed at the time by Gardner Gardner ciated, Inc. as a superintendent on the project. At the time of the accident he was driving from the construction site to the loading area from which materials were being taken for the construction, and was acting in furtherance of his job of overseeing the construction work.

There was evidence tending to show Mrs. Kidd, who lived within five miles of the intersection, knew that construction was going on in the general area. It was shown by the evidence that the view of a driver approaching the intersection from either direction was obstructed by buildings, fences, weeds, and other growth so that neither driver could see vehicles approaching the intersection on the other road. The day was sunny and clear and the roads were dry.

Plaintiffs brought this action asserting liability on the part of Clark Gardner on the ground of negligence in his operation of the pickup truck driven by him, and asserting the liability of Gardner Associated, Inc. as owner of the pickup driven by Clark Gardner under the doctrine of respondeat superior, and also that Gardner Associated was liable on the ground of its negligence in failing to maintain warning signs at the intersection. The defendants denied any negligence on their part and alleged contributory negligence on the part of Mrs. Kidd as a proximate cause of the accident.

Plaintiffs assign as error the following instruction No. 25 given by the trial court:

'Ladies and gentlemen, you are instructed that the law of the State of Idaho governing the movement of traffic as included in the previous instructions do not apply to persons, motor vehicles and other equipment while such persons, motor vehicles or other equipment are actually engaged in work upon the surface of a highway, but do apply to such persons when travelling to and from such work.'

This instruction was based upon the provisions of I.C. § 49-525(b), which is as follows:

'(b) Unless specifically made applicable, the provisions of this act shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work.'

'(T)his act' refers to S.L.1953, ch. 273, compiled in Idaho Code as §§ 49-501 to 49-846 and 49-1001 to 49-1126, including ch. 7 of Title 49, covering 'OPERATION OF VEHICLES-RULES OF THE ROAD.' Other modifying instructions given by the court are set out in the footnote. ¹

At the time of the accident Clark Gardner was driving the defendant's pickup truck...