Laidlaw v. Barker
| Decision Date | 24 April 1956 |
| Docket Number | No. 8334,8334 |
| Citation | 78 Idaho 67,297 P.2d 287 |
| Parties | James A. LAIDLAW and Florence C. Laidlaw, husband and wife, Plaintiffs-Respondents, v. Charles A. BARKER and Pacific Supply Co-operative, a corporation, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Elam & Burke, Boise, Sherman J. Bellwood, Rupert, for appellants.
Ralph R. Breshears, Boise, Dean Kloepfer, Burley, for respondents.
Respondents seek recovery of damages for the death of James A. Laidlaw, Jr., their 13-year old son, allegedly caused by the negligence of appellant Charles A. Barker, as an employee of appellant corporation, while operating an automobile.
Appellants, by their answer, admitted the operation of the automobile by appellant Barker in the scope of his employment, denied respondents' allegations of negligence, and affirmatively pleaded both contributory negligence of the Laidlaw boy and negligence of his father.
The trial court denied appellants' motions for nonsuit and for directed verdict. The jury returned a verdict in favor of respondents upon which the court entered judgment. The court thereafter denied appellants' motion for a new trial. Appellants have appealed from the judgment. They assign error of the trial court in denying their motions for nonsuit and for directed verdict, and assign insufficiency of the evidence to support the verdict, urging that the evidence shows that the Laidlaw boy was guilty of contributory negligence as a matter of law.
The pertinent facts and circumstances surrounding the fatal accident are hereinafter set forth.
U. S. Highway No. 30 North is an improved arterial state highway, a portion of which extends in a general easterly and westerly direction to and through the City of Rupert. The highway has an 80-foot right-of-way. It is intersected at right angles about one mile east of Rupert by a county road, having a 50-foot right-of-way, extending in a general northerly and southerly direction. The highway, at the times and places mentioned herein, at and for a considerable distance both east and west of the intersection was level and straight with an unobstructed view, and had posted thereon a daytime speed limit of 60 miles per hour. The intersecting county road was posted with stop signs both at the north and at the south border of the state highway right-of-way.
March 14, 1954, at about 2 o'clock P.M. respondents caused their band of sheep consisting of about 1,000 ewes and a like number of lambs to be driven northerly along the county road through said intersection. Respondent James A. Laidlaw was in charge of the sheep-moving operation. Two herders, respondents' employees, were in front of the band of sheep, and four herders, respondents' employees, and additionally the Laidlaw boy, were behind the band. Respondent Laidlaw stationed an employee Maxey east of the intersection near the north boundary of the highway, where Maxey flagged to a stop the west-bound highway traffic, and respondent stationed himself west of said intersection and flagged to a stop the east-bound highway traffic. They halted some six to eight cars and trucks traveling east, and about the same number traveling west while the sheep were being driven northerly on the county road through the intersection.
Respondent Laidlaw released the vehicular traffic after the sheep had cleared the right-of-way of the highway. His testimony relating to his releasing the traffic and not further controlling it, appears as follows:
Respondent Laidlaw's testimony shows that the sheep had cleared the 80-foot right-of-way of U. S. Highway No. 30, as follows:
'Q. Had the sheep entirely cleared the right-of-way at the time this occurred?
A. The sheep had entirely cleared Highway 30. * * *
A herder was in charge of the sheep keeping any of them from straggling back onto the right-of-way of the highway.
Respondent Laidlaw testified that just prior to the accident, he and one of his employees stood at the north side of the highway about 30 feet west from the middle of the county road; a herder stood near the middle of the county road at the north boundary of the 80-foot right-of-way of the highway; his employee Maxey and the boy stood on the county road, south of highway 30. The sheep had cleared the 80-foot highway's right-of-way to the north.
Respondent Laidlaw testified that all the west-bound traffic had cleared the intersection; also, that the east-bound traffic had cleared the intersection, since from where he stood, looking easterly toward mail boxes situate on the south side of the highway and about 75 feet east from the intersection, the last of the cars going east appeared to have gone about as far as the mail boxes.
Respondent Laidlaw testified that when he first saw his boy just prior to the accident, the boy was coming across the highway and was within five feet of the point of impact. Then his testimony appears:
The employee Forgeon, who was at the rear of the band of sheep keeping them from straggling back on to the right-of-way of Highway 30, testified that respondent Laidlaw and Maxey released the traffic when he 'had the sheep off out of the way.' He then stated that the traffic had cleared going both east and west, although he did not estimate how far the last of the east-bound traffic had proceeded east from the intersection. His testimony then appears:
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The employee Maxey testified that after the sheep had gone across the highway he released the west-bound traffic and then his testimony appears:
Mr. Maxey then took up a position on the south of the highway with the Laidlaw boy; both were some three to five feet south of the oil surface of highway 30. Just prior to the accident he turned to the south on the county road to pick up a lamb and place it in his employer's nearby pickup truck and while so engaged he heard the impact. He testified with reference to the traffic as follows:
Maxey further testified that there was nothing to interfere with the boy's vision at said time and place.
The sheriff of Minidoka County and his deputy ascertained that Barker had been driving variously between 50 and 60 miles per hour coming from Pocatello; also that Mr. Winegar, following Barker, noticed that both he and Barker were traveling around 50 or 55 miles per hour. The deputy sheriff ascertained from Barker that the boy appeared to come from behind a pick-up truck just prior to the accident. The accident occurred in the highway's north lane and in Barker's right-hand lane of traffic. The left-hand wheels of the Barker automobile were approximately 2 feet and nine inches north of the highway's white center line extending through the intersection.
The foregoing facts and circumstances in the main constituted respondents' case in chief, whereupon they rested.
Appellants thereupon moved for a nonsuit, which the court denied. Appellants pointed to the evidence adduced by respondents as showing that the boy crossed highway 30 without yielding the right-of-way to on-coming traffic; that he didn't look before running across the highway and in front of the Barker car, although he had a clear view to his right, so that had he looked he could have seen the Barker car approaching; that he did not look either to his right or to his left when running across the highway.
Appellants developed facts and circumstances showing that Barker traveled at speeds between 50 and 55 miles per hour coming from Pocatello, and at about 55 miles per hour up to the near vicinity of the intersection; the boy appeared to Barker as coming from behind a pick-up truck; the boy was running, crossing the highway from the south to the north; when Barker first saw the boy, about 50 feet away, he applied his brakes; the boy at that time was about at the center line of the highway; Barker did not turn his car to the right or left when he applied his brakes; he was not going as fast as 55 miles an hour when he hit the boy because he...
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