Kuhn v. Dell
| Decision Date | 23 July 1965 |
| Docket Number | No. 9427,9427 |
| Parties | Roland KUHN, Plaintiff-Respondent, v. Edward DELL and Monty A. Dell, Defendants-Appellants, and Floyd D. Kuhn, Additional Party on Counterclaim and Respondent. |
| Court | Idaho Supreme Court |
Brauner & Fuller, Caldwell, for appellants.
Roger L. Williams, Nampa, for respondent.
This is an appeal from an order granting a motion for a new trial in favor of respondent (plaintiff) upon the ground, as stated in the order:
'that the pleadings and evidence * * * raised the issue of whether or not defendant had the last clear chance to avoid the accident involved in this action, and the issue having been made, it should be submitted to the jury for determination.'
Respondent Roland Kuhn in his complaint alleged that on November 21, 1961, about 5:35 o'clock p. m., appellant (defendant) Monty A. Dell negligently drove and operated an automobile owned by appellant Edward Dell, with the latter's permission, on Idaho State Highway 45, in Canyon County; that the Dell automobile collided with the rear end of an automobile being carefully driven and operated by respondent Floyd D. Kuhn; that thereby the Kuhn vehicle sustained substantial damage for which respondent Roland Kuhn prayed judgment against appellants.
Appellants in their answer admitted that Monty A. Dell was driving the vehicle with Edward Dell's consent, and admitted the collision, but denied that they were negligent. They then counterclaimed seeking judgment against respondents, for damages sustained to the Dell automobile, alleging that the damages were caused by the negligence of the additional party, respondent Floyd D. Kuhn, who was operating the Kuhn vehicle with respondent Roland Kuhn's consent. Respondents by their reply and counterclaim denied negligence on their part.
At the conclusion of a jury trial the jury returned its verdict finding 'for neither plaintiff or defendant,' and the trial court entered judgment accordingly.
Thereupon respondents moved for a new trial, asserting that the trial court erred in failing to instruct the jury concerning the doctrine of last clear chance. Upon entry of the order granting the motion for a new trial on that ground, appellants perfected this appeal.
Appellants assign error committed by the trial court in granting the motion for a new trial, asserting that the trial court's refusal to give a jury instruction on last clear chance constituted a correct application of the law to the evidence. The issue thus raised is whether appellant Monty A. Dell had a last clear chance to avoid the accident under the evidence.
Where the trial court in granting a new trial expressly states the ground upon which the new trial was granted, the appellate court will determine on the appeal the issue of whether the particular ground justified the granting of the motion. Sanchotena v. Tower Co., 74 Idaho 541, 264 P.2d 1021 (1953); Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 22 P.2d 147 (1933).
In granting or refusing a motion for new trial, the trial court possesses wide discretion; the appellate court will not reverse the trial court unless it clearly appears that the court abused such discretion. Smith v. Big Lost River Irrigation District, 83 Idaho 374, 364 P.2d 146 (1961); State ex rel. Rich v. Sweet, 82 Idaho 191, 351 P.2d 230 (1960); Hall v. Bannock County, 81 Idaho 256, 340 P.2d 855 (1959); Stearns v. Graves, 62 Idaho 312, 111 P.2d 882 (1941); Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430 (1949); Applebaum v. Stanton, 47 Idaho 395, 276 P. 47 (1929).
In order to justify the giving of an instruction on the last clear chance doctrine there must be substantial evidence to support the application of the doctrine. Schwandt v. Bates, 88 Idaho 131, 397 P.2d 244 (1964); Allen v. Idaho Power Company, 85 Idaho 309, 372 P.2d 80 (1962); Hale v. Gunter, 82 Idaho 534, 356 P.2d 223 (1960); Ralph v. Union Pacific Railroad Company, 82 Idaho 240, 351 P.2d 464 (1960); Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287 (1936).
The evidence to be considered in disposing of the issue relating to the last clear chance doctrine, shows that on November 21, 1961, about 5:30 o'clock p. m., respondent was driving his father's automobile northerly on a straight portion of Idaho State Highway 45 in Canyon County. After he had come over a rise or 'hill' in the highway and was traveling down the slope, the automobile ran out of gasoline and the engine stopped running, whereupon respondent coasted the vehicle about one-fourth of a mile to a halt at his right-hand side of the highway, about one-half mile from the top of the rise or 'hill.' When the car stopped its two right wheels were off the paved highway but the remaining portion of the car, measuring six feet six inches in width, remained on the traveled portion of the highway. The highway was newly constructed. The shoulder bordering the highway was accessible and of sufficient width to park a car thereon. Respondent Floyd D. Kuhn testified that the shoulder of the highway appeared to be moist and unstable. Appellant Monty A. Dell testified that the shoulder was constructed of 'basement dirt,' i. e., gravel. Respondent attempted to start the car without avail. He testified that inasmuch as the sun had set his car lights were turned on and that he left them lighted; he then started to get out of the car, at which time it was struck in the rear by an automobile driven by appellant Monty A. Dell.
Appellant Monty A. Dell testified that he was driving his father's automobile, traveling north toward Nampa on Idaho State Highway 45 just prior to the collision. The car was in good condition, including its brakes. He had the headlights of the vehicle turned to low beam. He came over a rise or 'hill' in the highway, and the highway then gradually sloped downward. As he started down the slope he noticed that the speedometer on the car showed he was traveling at the speed of 50 miles an hour, within the posted speed limit. He met two cars with bright lights just as he commenced traveling down the slope. He was driving in his own right-hand traffic lane. He then testified:
* * *
* * *
He further testified that when proceeding down the slope he first saw the Kuhn automobile when it was about 50 feet distant in front of him on the highway. It was then that he 'tried to put on my brakes or to swerve but I hit him before I could do anything.' The lights of the Kuhn car were not on but, according to Dell, its tail lights 'looked just exactly like a reflection.' The right front end of the Dell car collided with the rear of the Kuhn car.
The deputy sheriff called to the scene of the collision, testified that about 5:35 o'clock p. m., on November 21, 1961, he received a call concerning the collision and proceeded immediately to the scene of the accident. When he left the sheriff's office he did not have his car lights turned on. He testified concerning the necessity of having lights turned on:
The deputy sheriff stated that at the point of the impact the highway was 41 feet wide from pavement edge to pavement edge; that a center line was painted down the middle of the paved portion of the highway; that the left rear tire of the Kuhn vehicle at the time of impact was located on the pavement six feet six inches from the pavement edge, leaving fourteen feet of clearance between the Kuhn vehicle and the center of the highway, with twenty feet six inches of the highway on the opposite side of the center line. He did not recall whether respondent's lights were on at the time of the accident.
Appellant Edward Dell, owner of one of the vehicles, arrived at the scene of the collision about half an hour after it occurred. He testified that he noticed no lights on the Kuhn automobile at the time.
The issue, under the circumstances shown by the evidence, as it relates to the last clear chance doctrine, is whether appellant Monty A. Dell, upon becoming aware of the peril of respondent Floyd D. Kuhn, had sufficient opportunity to avert the collision and consequent damage to the Kuhn car.
The doctrine of last clear chance of necessity admits an avenue of escape from the consequences of the contributory negligence of the proponent of the doctrine. Rippetoe v. Feely, 20 Idaho...
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